Settenda v. Ashcroft

• Decision Date: 02 August 2004
• Docket Number: No. 03-1722.,03-1722.
• Parties: Yusufu Billy SETTENDA and Maria Rhita Nabawanga, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

377 F.3d 89

Yusufu Billy SETTENDA and Maria Rhita Nabawanga, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1722.

United States Court of Appeals, First Circuit.

Heard June 7, 2004.

Decided August 2, 2004.

COPYRIGHT MATERIAL OMITTED

On Petition for Review of an Order of the Board of Immigration Appeals.

William E. Graves, Jr., with whom Kerry E. Doyle and Graves & Doyle were on brief, for petitioners.

Shelley R. Goad, Attorney, Civil Division, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, and Linda S. Wendtland, Assistant Director, Office of Immigration and Litigation, were on brief, for respondent.

Before SELYA, LYNCH, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Yusufu Billy Settenda and Maria Rhita Nabawanga, natives and citizens of Uganda, seek review of the decision by a single member of the Board of Immigration Appeals (BIA) to deny their applications for asylum under the Immigration and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under Article 3 of the United Nations Convention Against Torture (CAT).¹ We deny the petition.

I.

Settenda and Nabawanga traveled separately from Uganda to the United States on business visas in 1999. The following year, the INS charged them both as being removable from the United States under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as aliens who remained beyond the time authorized. Petitioners conceded that they were removable as charged and applied for asylum, withholding of removal, and protection under CAT. During several merits hearings before the Immigration Judge (IJ), Settenda claimed that he was a member of the Ugandan Internal Security Organization (ISO), and, in that capacity, had been assigned to investigate the death of Ugandan Prince Charles Happy Kiganangoma.² Settenda testified that his investigation implicated certain high-level government officials in the Prince's death, including his immediate superior at ISO. Settenda claimed that he was threatened and that two attempts were made on his life as a result of his investigation. Further, Settenda attested that because of the information he possessed about governmental involvement in Prince Kiganangoma's death, he feared persecution and torture by government officials should he return to Uganda.

After the merits hearings, the IJ found that Settenda's testimony lacked credibility, was inconsistent and implausible on key points, and was not supported by the submitted documentary evidence. After citing several portions of Settenda's testimony and their deficiencies, the IJ stated that she "believe [d] [Settenda] is afraid to return to Uganda but the true reasons for his fear and the exact nature of the harm he fears had not been presented to this Court in a straightforward or truthful manner." The IJ found that Settenda "provided information and evidence which is not correct or truthful concerning his investigation into a highly publicized political murder." Finally, again citing specifically to portions of Settenda's testimony that were inconsistent, implausible, or both, the IJ stated that "[b]ased on all the evidence before me, ... [Settenda] has not provided what to this Court is credible, complete and truthful information concerning his activities with the ISO, his reasons for leaving Uganda and what exactly he fears would happen if he comes back." Accordingly, the IJ denied the relief sought but nevertheless granted petitioners voluntary departure under INA § 240B, 8 U.S.C. § 1229C.

On appeal to the BIA, a single member of the Board rejected petitioners' claims, specifically relying upon and affirming the IJ's findings that the "testimony was not sufficiently credible and the evidence presented was not adequate to support the [petitioners'] burden of proof." The BIA also stated that

[o]verall, we agree with the Immigration Judge that the testimony, of limited credibility and lacking in detail, combined with the inadequate documentary support, provides insufficient evidence to meet the overall burden of proof. On this same basis, we agree that the record does not provide prima facie evidence that it would be more likely than not that the [petitioners] would face torture if returned to their native country. We, therefore, agree they are ineligible for relief under the Convention Against Torture.

In his petition to this court, Settenda makes three arguments: first, that his testimony was credible and establishes his eligibility for asylum and withholding of removal; second, that the IJ and BIA failed to analyze his CAT claim under the proper legal standard; and third, that the single-member BIA order violated the applicable regulations and his rights under the Fifth Amendment's Due Process Clause. After describing the standards of review, we analyze these arguments seriatim.

II.

"Ordinarily, Courts of Appeals review decisions of the [BIA], and not those of an IJ. When the BIA does not render its own opinion, however, and either defers [to] or adopts the opinion of the IJ, a Court of Appeals must then review the decision of the IJ." Albathani v. INS, 318 F.3d 365, 373 (1st Cir.2003) (quoting Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002)). We will uphold decisions of the IJ and BIA "if supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). This standard applies both to asylum and withholding claims as well as to claims brought under CAT. See, e.g., Pieterson v. Ashcroft, 364 F.3d 38, 40 (1st Cir.2004). We will reverse only if the petitioner's evidence would compel a reasonable factfinder to conclude that relief was warranted. Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812 (codified at INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) ("the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary")). Appellate courts review legal conclusions de novo, Manzoor v. U.S. Dept. of Justice, 254 F.3d 342, 346 (1st Cir.2001), including alleged errors related to due process claims, Mekhoukh v. Ashcroft, 358 F.3d 118, 129 (1st Cir.2004).

A. Asylum and Withholding of Removal

Settenda bore the burden of establishing his eligibility for asylum and withholding of removal. 8 C.F.R. § 1208.13(a). To be eligible for asylum, Settenda had to prove that he was a refugee under 8 U.S.C. § 1158(b)(1), meaning that he was "unable or unwilling to return to ... [Uganda] 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) (defining "refugee"). A petitioner who is unable to establish eligibility for asylum a fortiori fails to establish eligibility for withholding of deportation. Khem v. Ashcroft, 342 F.3d 51, 54 (1st Cir.2003); see also, Nelson v. INS, 232 F.3d 258, 261 n. 2 (1st Cir.2000) ("Because a failure to prove eligibility for asylum under INA § 208, 8 U.S.C. § 1158, necessarily means a failure to meet the requirements for withholding of deportation, we only discuss the former."). An applicant must support his claim through credible testimony at all stages of the proceedings, and if the testimony is credible, it "may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 1208.13(a).

The IJ's well documented finding that Settenda failed to support his application for asylum and withholding with credible testimony dooms his claim on appeal. "[T]he IJ must, if he or she chooses to reject [the petitioner's] testimony as lacking credibility, offer a specific, cogent reason for [the IJ's] disbelief." Gailius v. INS, 147 F.3d 34, 47 (1st Cir.1998) (internal quotation marks and citation omitted). Here, the IJ detailed the reasons for her conclusions, drawing on her observations of Settenda while testifying as well as analyzing the inconsistencies in and improbability of portions of the testimony. Similarly, the BIA identified the portions of the IJ's findings — namely, the general lack of credibility of Settenda's testimony and the inadequate documentary support — which it relied on and affirmed. See Salazar v. Ashcroft 359 F.3d 45, 52 (1st Cir.2004) (citing Chen v. INS, 87 F.3d 5, 7-8 (1st Cir.1996), for the proposition that "if the Board's view is that the IJ `got it right,' the law does not demand that the Board go through the idle motions of dressing the IJ's findings in its own prose" and that the BIA "may simply state that it affirms the IJ's decision for the reasons set forth in that decision"). The IJ made detailed findings about the deficiencies in Settenda's testimony and documentary evidence and why she found his testimony not to be credible; the BIA specifically affirmed and adopted those findings. Our review reveals that far from compelling a conclusion contrary to that reached by the IJ and BIA, see Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812, the findings of the IJ are supported by substantial evidence. On this record, we find no error.

B. Relief Under the Convention Against Torture

An applicant seeking protection under CAT must establish "that he or she is more likely than not to be tortured if removed" to the proposed country of removal. Saint Fort v. Ashcroft, 329 F.3d 191, 196 (1st Cir.2003) (citing 8 C.F.R. § 208.16(c)(2)). "For an act to constitute torture it must be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions." Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.2004) (quoting In re J-E-, 23 I. & N. Dec. 291, 297...