Rivera v. Mukasey

• Decision Date: 07 December 2007
• Docket Number: No. 06-70028.,06-70028.
• Parties: Filomena Notario RIVERA, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

508 F.3d 1271

Filomena Notario RIVERA, Petitioner, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 06-70028.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2007.

Filed December 7, 2007.

Norma M. Molinar, San Francisco, CA, for the petitioner.

Charles Everett Mullens, United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-830-630.

Before: ROBERT R. BEEZER, STEPHEN S. TROTT, and SUSAN P. GRABER, Circuit Judges.

Opinion by Judge BEEZER; Comncurrence by Judge GRABER.

BEEZER, Circuit Judge:

Filomena Notario Rivera ("Rivera"), a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of an immigration judge's ("IJ") denial of her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. The IJ's adverse credibility determination is supported by substantial evidence and the BIA properly exercised its discretion in reducing Rivera's period for voluntary departure to 30 days. We deny the petition for review.

I

Rivera, a former schoolteacher from Bani, the Philippines, entered the United States in June 1993 on a Visitor's Visa that authorized her to stay in the country until June 1994. After Rivera remained in the United States past that date, the Immigration and Naturalization Service issued an order to show cause, charging Rivera with deportation. Rivera filed an application for asylum and withholding of deportation, contending that she had suffered past harassment, persecution and torture at the hands of the of the New People's Army ("NPA")¹ for her participation in the Filipino Civilian Voluntary Organization.

Rivera's asylum application describes a November 1992 episode in which NPA officials abducted and beat her. They kept her for several days until she agreed that she would cease providing the government with information about NPA activities. Soon after, she learned that the NPA had murdered her fiancé, a Bani police chief. Rivera fled to the United States. She briefly returned to the Philippines but, after determining that the NPA was still looking for her, came back to the United States in June 1993. Rivera averred that a return to her homeland would result in her arrest, detention, torture or death based upon her past activities and political opinion.

An IJ held a merits hearing in 1997 at which Rivera testified under oath. The IJ denied Rivera's requests for asylum and withholding of deportation. Rivera appealed that decision to the BIA. The BIA determined that Rivera's counsel had ineffectively assisted her by failing to adequately prepare her for the hearing and remanded the case to the IJ for a new hearing. In that remand order, the BIA directed the IJ to permit the parties to present additional evidence and to make an explicit credibility finding.

On remand, the IJ held another merits hearing in 2004. The IJ gave Rivera an opportunity to submit another application but she declined, opting instead to merely correct some dates on her initial application. Rivera again testified about the events and circumstances in the Philippines that led her to flee to the United States, including her abduction and her fiance's death. Her testimony differed substantially from her 1997 testimony. For example, at the 1997 hearing Rivera testified that the abductors did not identify themselves as NPA members, but at the 2004 hearing she said that the abductors had in fact identified themselves as official members of the NPA. Similarly, she said in 1997 that she was taken at gunpoint, but in 2004 she testified that her abductors did not use a firearm. Her 1997 testimony also contained contradictory statements concerning whether she was blindfolded during the abduction and whether she was held for three days or five days. In response to questioning by her new counsel, Rivera attempted to explain why her 1997 testimony had been inaccurate, stating that she was confused, scared, nervous and uncomfortable with her attorney.

The IJ determined that Rivera's testimony was not credible because of the numerous inconsistencies between her 1997 testimony and her 2004 testimony. Alternatively, the IJ found that Rivera had failed to show that she had suffered past persecution or an objective basis for a fear of future persecution. The IJ denied Rivera's claims for asylum and withholding of deportation. The IJ granted Rivera 90 days for voluntary departure. In her oral decision, the IJ stated that Rivera "has used every means of staying in the United States during the time she has been here now for approximately eight years. The Court has no greater reason to believe her today than it had to believe her when she testified in 1997."

Rivera appealed this decision to the BIA. The BIA affirmed the IJ's decision, noting the specific inconsistencies that led to the IJ's negative credibility determination. The BIA found that the IJ had not committed clear error in determining that Rivera was not credible and could therefore not meet her burden of demonstrating eligibility for asylum. The BIA also reduced the period of voluntary departure from 90 days to 30 days.

Rivera moved for reconsideration with the BIA, which denied the motion. In its order denying reconsideration, the BIA stated that it did not condone the statements made by the IJ that Rivera had "used every means of staying in the United States," but determined that neither the IJ's statements nor behavior supported a finding of bias or prejudice.

Rivera timely petitions for review of both the IJ's adverse credibility determination and the BIA's reduction of the period of voluntary departure. Rivera does not petition for review of the BIA's denial of the motion for reconsideration.

II

We review adverse credibility findings under the substantial evidence standard. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). "The substantial evidence test is essentially a case by case analysis requiring review of the whole record. 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." Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987) (internal citation omitted). Questions of law raised in a petition for review are reviewed de novo. Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001).

When the BIA has reviewed the IJ's decision and incorporated parts of it as its own, we treat the incorporated parts of the IJ's decision as the BIA's. Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002).

III

To be eligible for asylum, Rivera is required to show that she is unwilling or unable to return to her country of origin "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)(A). To demonstrate a well-founded fear of persecution, Rivera must show that she subjectively fears persecution and must "offer `credible, direct, and specific evidence in the record' to show that persecution is a reasonable possibility." Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995)). Although the substantial evidence standard is deferential, the IJ must provide "specific, cogent reasons" for an adverse credibility finding that bear a legitimate nexus to the finding. Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir.2000). "These reasons cannot be peripheral, but rather must go to the heart of petitioner's claim." Desta, 365 F.3d at 745.

After careful review of the administrative record, we find that substantial evidence supports the IJ's credibility determination. The IJ determined, and the BIA agreed, that the numerous inconsistencies between Rivera's 1997 testimony and her 2004 testimony showed a lack of credibility. Rivera repeatedly gave inconsistent testimony regarding the details of her abduction and those details go to the heart of her claim. Desta, 365 F.3d at 745. These inconsistencies, particularly when viewed cumulatively, deprive her claim of the requisite "ring of truth." Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005). These factual discrepancies are glaring because Rivera's entire claim centered around only two events.

Rivera contends that it was improper for the IJ to compare her 1997 testimony to her 2004 testimony in making the credibility determination. Neither lack of attorney preparation nor lack of a translator at Rivera's 1997 hearing prevented the IJ from considering Rivera's prior testimony at the 2004 hearing because the basis of the remand did not call into question the reliability of Rivera's testimony or the reliability of the transcript. This is not a blanket rule; the reliability of earlier testimony at a subsequent hearing will depend upon the circumstances of the case. If, for example, the BIA finds that a petitioner had inadequate translation services, an IJ might be precluded from relying on earlier testimony. This is not a case of that kind and the IJ properly considered Rivera's 1997 testimony in assessing her credibility.

Rivera's argument that she was denied a reasonable opportunity to explain the perceived inconsistencies is both inaccurate and unpersuasive. The transcript of the 2004 hearing reveals numerous instances when, at the prompting of her counsel, Rivera tried to explain the numerous inconsistencies. The IJ ultimately found these explanations insufficient. See Singh-Kaur v. INS, 183 F.3d 1147, 1151-53 (9th Cir.1999).

Because the IJ cited cogent and factually supported reasons to doubt Rivera's credibility and those reasons strike at the heart of her claim, substantial evidence supports the BIA's denial of asylum and withholding of removal.

IV

Rivera argues that the IJ exhibited bias in her comments during the...