Majid v. Holder

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1436

AHMED SHAH MAJID; SIMA A. MAJID; S. M.,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

No. 08-1489

AHMED SHAH MAJID; SIMA A. MAJID; S. M.,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petitions for Review of Orders of the Board of Immigration
Appeals.

Argued: May 15, 2009 Decided: July 14, 2009

Before MICHAEL, SHEDD, and AGEE, Circuit Judges.

Petitions for review denied by unpublished per curiam opinion.
ARGUED: David Christopher Drake, JOHNSON & ASSOCIATES, PC,
Arlington, Virginia, for Petitioners. Paul F. Stone, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Randall L. Johnson, JOHNSON & ASSOCIATES, PC,
Arlington, Virginia, for Petitioners. Gregory G. Katsas,
Assistant Attorney General, Civil Division, Ethan B. Kanter,
Senior Litigation Attorney, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Ahmed Shah Majid seeks review of the Board of

Immigration Appeals’ (BIA) affirmance of an immigration judge’s

(IJ) denial of his application for asylum and withholding of

removal. Majid additionally seeks review of the BIA’s denial of

his motion for reconsideration. Majid claims that the IJ and

the BIA erred in ruling that his asylum application was not

timely filed. He also claims that the IJ erred in finding that

he was not credible and that he had not established a likelihood

of future persecution if he was returned to Afghanistan. We

deny Majid’s petition for review as to both of these claims.

First, this court lacks jurisdiction to consider Majid’s

challenge to the timeliness of his asylum application. Second,

we conclude that the IJ offered, on balance, cogent reasons to

support his adverse credibility determination -– a determination

that formed a sufficient basis for the IJ and the BIA to deny

Majid’s request for withholding of removal.

I.

Majid is a native and citizen of Afghanistan seeking

asylum in the United States or, alternatively, withholding of

removal to Afghanistan, on behalf of himself and his wife and

daughter. Majid claims to have traveled from Afghanistan to the

United States with his wife and daughter in August of 2001. The

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date of his family’s entry into this country, however, was not

conclusively established. According to Majid’s asylum

application, his testimony before the IJ, and several

affidavits, he entered the United States by boat on August 10,

2001. An additional affidavit from Majid’s cousin places his

arrival on August 10, 2002, four months after Majid had filed

his asylum application within the United States. Neither the IJ

nor the BIA credited Majid’s account of his travel to the United

States, and the IJ placed Majid’s arrival in the United States

“on or about August 10, 1999,” J.A. 177, thereby disqualifying

Majid’s asylum application, which he was required to file within

one year of his entry into the United States.

Majid sought to establish the following facts in

support of his asylum application and application for

withholding of removal. While residing in Afghanistan, Majid

suffered persecution first at the hands of a powerful general,

Rashid Dostum, and later from the Taliban after it came to power

in 1996. Majid was trained as a lawyer and studied English for

approximately four years in school in Afghanistan. He came to

General Dostum’s attention in 1989 while defending a man accused

of bribery and corruption who claimed to have been framed by the

general. Majid investigated the case and concluded that General

Dostum had indeed framed his client because the client had

previously accused the general and the general’s soldiers of

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gang raping the man’s daughter. When General Dostum learned of

Majid’s investigation, he had his soldiers threaten Majid and

order Majid to discontinue the investigation. Majid refused to

do so. Majid was eventually arrested by General Dostum with the

help of the KHAD (the Afghani security and intelligence agency).

While in prison Majid was tortured, and after his release under

a general amnesty thirteen months later in 1991, he remained

“under the watch of General Dostum’s soldiers who were always

harassing [him].” J.A. 1060. Following his release Majid wrote

“secretive newsletters condemning the human rights atrocities

committed by the communists.” Id. When General Dostum and the

mujahidin came to power in April 1992, Majid spoke out against

them before fleeing from Kabul to Kara-Bagh, where he remained

for six years.

Majid was forced to return to Kabul in 1998 when the

Taliban began burning villages in the north of Afghanistan.

Upon his return to the capital, Majid suffered abuse at the

hands of the Taliban. He was beaten once for not wearing his

beard at an appropriate length, and was arrested twice in 2000

and held for a month and then for three weeks based solely on

his Tajik ethnicity and the fact that he was from north of

Kabul, the region where the Northern Alliance had fought against

the Taliban. In Kabul Majid spoke out against the Taliban’s

rejection of cooperation with the United Nations and aid from

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the United States. Majid was accordingly accused of helping

Christians and Westerners. In 2001 Majid, upon learning from a

friend that the Taliban was planning to execute him, arranged

his family’s flight from Afghanistan.

Majid paid the equivalent of $25,000 to two smugglers,

Najeeb and Asef, to help his family to get to the United States.

The smugglers provided Majid and his wife and daughter with

false documentation in the form of green passports. Beginning

in Pakistan, Asef accompanied the Majid family throughout their

travels to the United States. The journey involved crossing the

border into Pakistan on foot, driving several hours, taking

three plane flights, the first from Pakistan to an Arab country

that Majid was unable to identify, the second to a European

country that Majid was also unable to identify, and the third to

a country that Majid later concluded was Canada, based on its

proximity to New York. The family then embarked on a boat for

the final leg of their journey and ultimately arrived in New

York. There, Majid contacted a relative in Virginia, and Asef

bought train tickets to Virginia for Majid and his wife and

daughter. Asef accompanied Majid and his family on the first

few stops of their rail journey, but Asef then got off the

train, taking with him the group’s tickets, which had been

punched by the conductor. The only documentation from the

journey Majid retained is a handwritten receipt in English from

6
the Shobra Hotel in Peshawar, Pakistan, where Majid and his

family stayed for two nights on the 26th and 27th of July 2001.

On April 1, 2002, Majid filed an application for

asylum with the Department of Homeland Security (DHS). After

conducting a credible fear interview, DHS referred Majid to the

Department of Justice for removal proceedings and charged Majid

with removability under Immigration and Nationality Act (INA)

§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Majid appeared

before an IJ and conceded removability, but sought relief from

removal in the form of asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). The IJ

denied Majid’s asylum claim, holding that Majid failed to

demonstrate by clear and convincing evidence that he had filed

the claim within one year of his arrival in the United States.

Further, the IJ found that Majid was not a credible witness.

The IJ therefore determined that Majid had not established that

he suffered persecution in Afghanistan on account of a protected

criterion, and concluded that Majid failed to establish that it

was more likely than not he would be persecuted if he returned

to Afghanistan. The IJ consequently rejected Majid’s

applications for withholding of removal under the INA and the

CAT. He also found Majid ineligible for voluntary departure

pursuant to INA § 240B(b), 8 U.S.C. § 1229c(b), because Majid

had not established a desire for voluntary departure, the means

7
to do so, or that he had been present in the United States for

more than one year before the notice to appear was served.

On appeal the BIA affirmed the IJ’s decision. It

adopted the IJ’s finding that Majid failed to establish entrance

into the United States within one year of filing his asylum

application and the IJ’s adverse credibility determination. The

BIA accepted the reasons offered by the IJ and, in addition,

pointed out the contradiction between Majid’s cousin’s

affidavit, which places the date of Majid’s entry into the

United States on August 10, 2002, and the other affidavits,

Majid’s application, and Majid’s testimony, which place it on

August 10, 2001. The BIA noted that this contradiction

“significantly underscores the propriety of the Immigration

Judge’s decision on this issue.” J.A. 60. The BIA also

rejected Majid’s claim for withholding of removal under the CAT.

Majid filed two subsequent motions for reconsideration with the

BIA, both of which were rejected, and he now petitions for

review of the denial of his asylum application and the denial of

withholding of removal.

II.

Majid first challenges the IJ’s and the BIA’s

determinations that he did not timely file his asylum

application within one year of his arrival in the United States.

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 Majid does not dispute that pursuant to INA

§ 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), he bore the burden of

proving that his asylum application was filed within one year

after the date of his arrival in the United States. The IJ

found, and the BIA affirmed, that Majid had not carried this

burden.

Section 208(a)(3) of the INA, 8 U.S.C. § 1158(a)(3),

provides a “Limitation on judicial review”: “No court shall have

jurisdiction to review any determination of the Attorney General

under paragraph (2)” -- that is, any determination of whether

the asylum seeker has met his burden of proof regarding the

timeliness of the application. We have affirmed in dicta that

this provision means what it says. See Niang v. Gonzales, 492

F.3d 505, 510 n.5 (4th Cir. 2007) (“It is worth noting that,

even assuming [the petitioner] had not waived the timeliness

issue with respect to her asylum claim, we lack jurisdiction to

review the BIA’s decision in this respect.”) (citing 8 U.S.C.

§ 1158(a)(3)); Balde v. Gonzales, 223 F. App’x 265, 266 (4th

Cir. 2007) (unpublished); Lin v. Gonzales, 190 F. App’x 301, 305

(4th Cir. 2006) (unpublished). Other circuits have similarly

held that § 1158(a)(3) precludes review by federal courts. See

Hana v. Gonzales, 503 F.3d 39, 42 (1st Cir. 2007); Yakovenko v.

Gonzales, 477 F.3d 631, 635 (8th Cir. 2007); Tarrawally v.

Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003); Tsevegmid v.

9
Ashcroft, 318 F.3d 1226, 1230 (10th Cir. 2003); Fahim v. U.S.

Att’y Gen., 278 F.3d 1216, 1217-18 (11th Cir. 2002); Hakeem v.

INS, 273 F.3d 812, 815-16 (9th Cir. 2001); see also Tarraf v.

Gonzales, 495 F.3d 525, 531 n.5 (7th Cir. 2007). We are

therefore unable to review the timeliness of Majid’s asylum

claim.

III.

Majid also challenges the denial of his application

for withholding of removal. To qualify for withholding of

removal, Majid must establish that if he was sent back to

Afghanistan, there is a clear probability that his “life or

freedom would be threatened in that country because of [his]

race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). “An

applicant who has failed to establish the less stringent well-

founded fear standard of proof required for asylum relief is

necessarily also unable to establish an entitlement to

withholding of removal.” Anim v. Mukasey, 535 F.3d 243, 253

(4th Cir. 2008) (internal quotations removed). While “[a]n

applicant who successfully demonstrates that she suffered past

persecution on account of a protected ground is presumed to have

[the] well-founded fear of persecution required for refugee

status,” Dankam v. Gonzales, 495 F.3d 113, 120 (4th Cir. 2007)

10
(internal quotations removed), “[b]ecause the subjective element

cannot generally be proved other than through the applicant’s

testimony, an adverse credibility finding regarding testimony

about fear of future persecution will likely defeat a claim

unless the applicant introduces independent evidence of past

persecution,” Anim, 535 F.3d at 260 (internal quotations

omitted). Here, Majid offered no evidence of past persecution

beyond his own personal account, which the IJ and the BIA

declined to credit. Accordingly, the BIA’s denial of his claim

for withholding of removal must be affirmed if we accept the

IJ’s adverse credibility determination.

“We review the BIA's administrative findings of fact

under the substantial evidence rule, and we are obliged to treat

them as conclusive unless the evidence before the BIA was such

that any reasonable adjudicator would have been compelled to

conclude to the contrary.” Haoua v. Gonzales, 472 F.3d 227, 231

(4th Cir. 2007). When the BIA adopts the IJ’s opinion and

supplements it with its own reasoning, we review both decisions.

Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007).

When rendering an adverse credibility determination,

an IJ must “offer a specific, cogent reason for his or her

disbelief of the applicant.” Zuh v. Mukasey, 547 F.3d 504, 507

(4th Cir. 2008) (internal quotations and alterations omitted).

“Examples of specific and cogent reasons include ‘inconsistent

11
statements, contradictory evidence, and inherently improbable

testimony; [in particular,] where these circumstances exist in

view of the background evidence on country conditions, it is

appropriate for an Immigration Judge to make an adverse

credibility determination on such a basis.’” Tewabe v.

Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (quoting In re S-M-

J-, 21 I. & N. Dec. 722, 729 (BIA 1997) (en banc)). In

contrast, “we will not defer to adverse credibility findings

based on speculation, conjecture, or an otherwise unsupported

personal opinion.” Zuh, 547 F.3d at 507. “[A]n alien's own

testimony may in some cases be the only evidence available, and

it can suffice where the testimony is believable, consistent,

and sufficiently detailed to provide a plausible and coherent

account of the basis for his alleged fear.” Matter of Dass, 20

I. & N. Dec. 120, 124 (BIA 1989). Illusory inconsistencies do

not, however, support an adverse credibility finding. See Zuh,

547 F.3d at 508. And while omissions of facts in an asylum

application or during testimony do not, in themselves, support

an adverse credibility determination, the omission of key events

coupled with numerous inconsistencies may provide a specific and

cogent reason to support an adverse credibility finding. In re

A-S, 21 I. & N. Dec. 1106, 1109 (BIA 1998).

Here, the IJ based his adverse credibility

determination on five independent grounds. Although not all of

12
the IJ’s stated grounds withstand scrutiny, we conclude that, on

balance, the IJ had cogent reasons for the determination.

The IJ first faulted Majid for a lack of detail in his

testimony regarding his smuggled trip to the United States,

including his alleged dates of travel and plane and boat routes.

The IJ found Majid’s account of his travel implausible, noting

that: “Despite his education and training as a lawyer, [Majid]

expresses a glaring lack of awareness of his surroundings during

his smuggled trip into the United States.” J.A. 190. The IJ

went on to note that “[Majid] knows some English, a language

present in most airports and on airlines, but he did not

recognize the countries that he passed through or the airlines

he took during his smuggled trip to the United States.” Id.

Further, the IJ observed that “[Majid] was in occasional

possession of a false passport during his trip to the United

States, but claims that he did not notice his alleged country of

origin even though he saw his pictures inside the passport and

passed through immigration control in one of the transit

countries.” Id.

Majid attempts to explain away these deficiencies in

his account by claiming that he was frightened during the trip

and was concerned with taking care of his wife (then five months

pregnant) and two-and-a-half year old daughter. He notes that

the IJ offered no basis for his claim that English signage is

13
present in most airports. And Majid questions how his training

as a lawyer in Afghanistan is relevant to ascertaining

information about his flight itinerary, which, as Majid

explains, Asef sought to keep secret from Majid. Majid was

instructed by Asef not to ask questions about the details of the

travel.

Majid additionally supplied an affidavit from Kurt

Lohbeck, an Afghanistan expert, which states that “the method of

smuggling by men called[] ‘Najeeb’ and ‘Asef’ is typical of how

such things worked prior to 9/11/2001.” J.A. 84. Lohbeck

affirmed that a cost of $25,000 “was within the norm” and that:

For this Afghan family to stay in a place in Peshawar,
Pakistan for less than two weeks, a place called
Shobra Hotel, it is not uncommon for them not to have
records. The hotels in Peshawar where refugees would
go is [sic] very different from such places in this
country. They are primitive, crude and most likely do
not have records to be kept for proof of staying in
the hotel.

Id.

We observe first that an assumption regarding what a

person trained as a lawyer in Afghanistan would or would not

have observed amounts to “speculation, conjecture, or an

otherwise unsupported personal opinion” and is not a cogent

reason that can support an adverse credibility determination.

See Zuh, 547 F.3d at 507; cf. Cosa v. Mukasey, 543 F.3d 1066,

1068-69 (9th Cir. 2008) (rejecting IJ’s credibility

14
determination based upon “pure speculation” about how someone of

petitioner’s purported religion might look and act); Razkane v.

Holder, 562 F.3d 1283, 1287-89 (10th Cir. 2009) (rejecting IJ’s

determination regarding how person who is a homosexual would

look and act). Similarly, we cannot base affirmance on the IJ’s

unsubstantiated assertion that “English [is] a language present

in most airports and on airlines.” J.A. 190. This assertion

lacks any foundation in the record.

We do, however, accept the IJ’s more general

assessment that Majid’s account of his voyage to the United

States was lacking in detail. The IJ was permitted to cite this

lack of detail as a cogent reason in support of an adverse

credibility determination.

Second, the IJ supports his adverse credibility

determination with what he perceived to be several

inconsistencies in Majid’s asylum application and testimony. As

discussed below, because two of these inconsistencies are

supported by the record, we conclude that these inconsistencies

provide a second cogent reason to support the adverse

credibility determination.

Specifically, the IJ found Majid’s claim that his

thirteen-month imprisonment by General Dostum resulted from his

investigation into the general’s alleged crimes to be

inconsistent with his statement that he was accused by the

15
general of being a CIA spy. Majid claims that there is no

inconsistency here because the accusations of being a CIA spy

were pretextual and the real reason for Majid’s arrest was his

investigation into the general’s alleged crimes. Majid provided

the Lohbeck affidavit to the BIA in support of this contention.

Majid’s original affidavit in support of his asylum application,

however, stated that the accusations of being a CIA spy were the

result of his objection to communism, which the IJ was entitled

to find inconsistent with Majid’s later explanation and the

Lohbeck affidavit.

The IJ also found inconsistent Majid’s various

accounts of the manner in which General Dostum learned of

Majid’s investigation into the general’s criminal activities,

and Majid’s statements regarding whether he had ever filed a

complaint against the general. We agree that Majid’s affidavit

and extensive testimony on these points was confusing and

potentially contradictory, and the IJ was within his discretion

to interpret them as inconsistent.

Third, the IJ concluded that Majid’s demeanor, which

“appeared unemotional and unaffected,” was inconsistent with a

person who alleged he had been tortured. J.A. 190. We review

the IJ’s assessment that Majid “appeared unemotional and

unaffected” bearing in mind the IJ’s superior ability to gauge

the witness’ demeanor. Zine v. Mukasey, 517 F.3d 535, 541 (8th

16
Cir. 2008). “[A] consistent story, independently supported in

important respects and unmarred by implausibilities or

inconsistencies, could not normally be disregarded merely

because the witness -- especially one from a different culture

and unversed in English -- simply struck the decision-maker as

untruthful.” Teng v. Mukasey, 516 F.3d 12, 16 (1st Cir. 2008).

We are not faced with such a situation in this case. The IJ’s

adverse credibility determination hinges not only on Majid’s

unemotional demeanor, but on additional and independent cogent

reasons: inconsistencies in Majid’s accounts and a lack of

detail. We therefore accept the IJ’s conclusions regarding

demeanor as supportive of the IJ’s adverse credibility

determination.

Fourth, the IJ found it “troubling” that Majid

provided inadequate corroboration for his claim that he entered

the United States within one year of his asylum application as

well as regarding his claim of past and fear of future

persecution. J.A. 191. The IJ observed that medical records or

affidavits from Majid’s coworkers, neighbors, or family members

describing the circumstances of his arrest, prison conditions,

or recovery from injuries inflicted through torture would

“better support [Majid’s] testimony.” Id. Additionally, the IJ

would have liked tangible evidence of Majid’s trip to the United

17
States other than his unauthenticated letter from the Shobra

Hotel in Pakistan.

“Although an applicant’s credible testimony may be

sufficient to carry his burden of proof, an IJ is entitled to

evaluate the asylum-seeker’s credibility and to require

corroboration of self-serving testimony when such corroboration

appears to be readily obtainable.” Muñoz-Monsalve v. Mukasey,

551 F.3d 1, 8 (1st Cir. 2008). Here again, the IJ did not base

his adverse credibility determination solely on Majid’s lack of

corroborating evidence, and, as we have explained above, the IJ

offered several cogent reasons for the determination.

Consequently, we need not determine whether the IJ was entitled

to discount the credibility of Majid’s testimony based Majid’s

failure to produce specific records.

We have some skepticism about the IJ’s fifth basis for

his adverse credibility determination. The IJ observed that

Majid’s testimony was “non-responsive when the DHS and this

Court inquired into basic components of his story.” J.A. 190.

The IJ did not, however, specify which components of Majid’s

story he was referring to. And a review of the hearing

transcript reveals that, while Majid’s initial responses to

certain yes or no questions were in the form of explanations

rather than simple one-word answers, after prompting from the

IJ, he did eventually answer each question. Additionally, few

18
of these yes or no questions pertained to material aspects of

Majid’s account. See, e.g., J.A. 340-41 (offering explanation

rather than yes or no when asked whether General Dostum had been

elected president of Afghanistan); J.A. 345 (initially

nonresponsive when asked whether he informed his relatives he

planned to flee Afghanistan); J.A. 353-54 (initially

nonresponsive when asked whether communists and mujahidin in

Afghanistan, whom Majid referred to as “hav[ing] been criminal,”

have ever been prosecuted); J.A. 358 (offering explanation

rather than yes or no when asked whether he had attempted to

contact the Karzai government to advise it of misdeeds of

members of the government). To the extent Majid’s answers to

these questions may be attributed to language problems or

nervousness, they do not form a proper basis for an adverse

credibility determination. See Elias v. Gonzales, 490 F.3d 444,

450 (6th Cir. 2007). However, because the IJ offered several

other cogent reasons in support of his determination, and his

analysis largely supports the finding that Majid lacked

credibility, we need not determine whether Majid’s alleged

nonresponsiveness provided a separate cogent reason.

In conclusion, the bases cited by the IJ for his

adverse credibility determination in this case were, on balance,

cogent, and the record does not compel a contrary conclusion.

As explained above, because we accept the IJ’s adverse

19
credibility determination, we will leave in place the IJ’s

conclusion that Majid has failed to establish the requisite fear

of future persecution.

* * *

For the reasons stated above, we deny Majid’s

petitions for review of (1) the BIA’s order denying his claims

for asylum and withholding of removal and (2) the BIA’s order

denying his motion for reconsideration.

PETITIONS FOR REVIEW DENIED

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