United States Court of Appeals
For the First Circuit
No. 09-2034
ANSUMANA MAKALO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Michael A. Paris and Cutler & Associates were on brief for
petitioner.
Carmel A. Morgan, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil
Division, and Russell J. E. Verby, Senior Litigation Counsel,
were on brief for respondent.
July 19, 2010
LYNCH, Chief Judge. Ansumana Makalo, a native and
citizen of The Gambia (Gambia), petitions for review of a decision
by the Board of Immigration Appeals (BIA) affirming an immigration
judge's (IJ) denial of his application for withholding of removal
and protection under the Convention Against Torture (CAT). Makalo
argues the IJ erred by discrediting several documents he submitted
and by finding he had not met his burden to show eligibility for
withholding of removal or CAT protection. Substantial evidence
supports the denial of relief.
I.
Makalo entered the United States on a student visa on
January 7, 1992. On November 21, 2002, he filed an application for
asylum, withholding of removal, and protection under the CAT.
Makalo claimed that Gambia issued an arrest warrant for him in 2001
for giving money to his fugitive brother, who had fled political
persecution in Gambia. Makalo alleged he would suffer mistreatment
as a prisoner if returned to Gambia. He did not claim he was the
victim of past persecution.
The Department of Homeland Security issued Makalo a
Notice to Appear on May 24, 2005, charging him with removability,
which Makalo conceded. Makalo testified before the IJ on July 12,
2007. In his asylum application and before the IJ, Makalo also
submitted State Department and Amnesty International country
reports; newspaper articles; Gambia passports issued to Makalo,
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including one issued in August 2001 and one in 1991; a "wanted"
notice from July 2001 for Makalo; and a bench warrant for Makalo
dated September 2001, alleging Makalo had failed to appear before
a tribunal in August 2001.
Makalo's basic story, from his testimony and documents,
was as follows. Makalo's brother, Foday Makalo,1 was Secretary
General for the ruling party in Gambia, the Alliance for Patriotic
Reorganization and Construction (APRC). In 1999, Foday was charged
with abusing his position; the government later alleged that Foday
had embezzled party money. Foday fled Gambia, eventually moving to
Mali. Makalo testified that Foday's prosecution was politically
motivated and that Foday fled after several political associates
were killed or disappeared.
Makalo testified that in mid-July 2001 he sent Foday
money to visit their father, who had fallen ill, in Gambia. Foday
did so without being captured. In 2001 the government allegedly
charged Makalo with aiding and abetting a fugitive. Makalo
speculated the government learned he had helped Foday by
wiretapping their mother's phone. This charge prompted Makalo to
seek asylum.
Makalo testified that his childhood friend, Kemo Balajo,
sent him all his documentary evidence. He testified that the
1
We refer to Ansumana Makalo as "Makalo" and Foday Makalo
as "Foday."
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government later arrested and ultimately killed Kemo on unrelated
charges. When pressed on how he obtained a Gambian passport dated
August 20, 2001, Makalo testified that his family obtained it for
him before the government had learned he had sent money to Foday.
The IJ denied Makalo's application, finding his asylum
application was untimely and holding Makalo had not met his burden
of proof to obtain withholding of removal or protection under the
CAT. The IJ noted that Makalo's narrative about when he sent his
brother money was inconsistent. Makalo testified he sent the money
in mid-July 2001 and obtained a passport in August 2001, before
authorities learned what he had done. Yet, the IJ observed, the
"wanted" notice was dated July 2, 2001. Makalo tried to change his
testimony when confronted with this inconsistency. The IJ
concluded, "He ought to remember that date."
The IJ found other problems with Makalo's testimony.
Makalo could not remember the date of his father's death. Makalo
could not logically explain how Gambian authorities learned he sent
money, while in the United States, to his brother in Mali. The IJ
noted Makalo's explanation–that his mother's phone was wiretapped--
was contradicted by newspaper articles Makalo provided saying that
authorities were surprised by Foday's visit to Gambia.
The IJ found much of Makalo's documentary evidence was
unreliable. The IJ noted that a 1997 State Department report said
that Gambian asylum applicants had forged documents to improve
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their applications. And the IJ noted that Makalo failed to provide
accessible evidence to buttress his claims, such as affidavits from
his mother, Foday, and another brother--all of whom Makalo was in
contact with--verifying his story.
Though the IJ apparently accepted that prisoners in
Gambia may face torture, the IJ concluded that Makalo had "failed
to meet his burden in these proceedings . . . [to show] through
credible testimony or other credible documentation that he has ever
been targeted or harmed by the Government . . . or that there is
any objective reason why [the Gambian government] might seek to
harm him." The IJ also found Makalo had not shown he would face
persecution on a protected ground. The IJ found no evidence Foday
and Makalo were wanted for political rather than criminal reasons.
The BIA affirmed the IJ's denial of Makalo's application
for withholding of removal and CAT protection. The BIA rejected
his argument that the IJ should have credited his documents,
finding that Makalo ignored many "indicia of unreliability" the IJ
supportably relied on. The BIA affirmed the IJ's ruling that
Makalo had not presented reliable evidence he would face
persecution or torture in Gambia or that he would be persecuted on
a protected ground.
II.
Our review is under the "highly deferential" substantial
evidence standard. Mejilla-Romero v. Holder, 600 F.3d 63, 70 (1st
-5-
Cir. 2010) (internal quotation marks omitted). We must accept any
findings that are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole," and we
will not disturb the agency's decision unless "any reasonable
adjudicator would be compelled" to reach a contrary conclusion.
Id. (internal quotation marks omitted).
To obtain withholding of removal,2 applicants must prove
it is more likely than not that they will suffer persecution on one
of five protected grounds, "race, religion, nationality, membership
in a particular social group, or political opinion." Faye v.
Holder, 580 F.3d 37, 41 (1st Cir. 2009) (internal quotation marks
omitted). Applicants seeking CAT protection must prove "it is more
likely than not they will be tortured if removed to their
destination country." Id. at 42.
Makalo argues the IJ should not have discounted his
documentary evidence. He also argues the IJ and BIA should have
found he had established eligibility for withholding of removal and
CAT protection. Both arguments fail.
Makalo urges the IJ improperly rejected his documentary
evidence because he submitted copies rather than originals. Makalo
overlooks the IJ's real concern: the IJ had great reason to doubt
2
Makalo waived any appeal of the IJ's denial of his asylum
application by not appealing that decision to the BIA. See, e.g.,
Jia Duan Dong v. Holder, 587 F.3d 8, 13 (1st Cir. 2009).
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the authenticity of the copies he submitted. Without originals,
the IJ simply could not rely on these documents.
Makalo submitted two documents showing he was wanted;
both were problematic. The date of a wanted notice contradicted
Makalo's testimony. Part of the notice was handwritten, and it
incorrectly stated Makalo's age. The bench warrant also had
handwriting and said that Makalo was due to appear in court just
eleven days after he obtained a passport in Gambia.
Of the many newspaper articles Makalo submitted, only two
mentioned him. Both appeared designed to buttress his application.
One was also in a different font than the rest of the newspaper and
was dated days after Kemo, whom Makalo testified sent the article,
was imprisoned for nine months.3 The IJ supportably chose to give
these articles no weight.
Substantial evidence supported the IJ's and BIA's rulings
that Makalo had not presented enough credible evidence that he
would be harmed in Gambia to obtain withholding of removal or CAT
protection. Makalo's story was inconsistent and his evidence weak.
3
This article was also substantively suspicious. It
identified Makalo as a suspect in a large coup plot, and it
featured his picture prominently on the front page. The State
Department's 2006 country report confirmed Gambian authorities
arrested nearly fifty people for plotting to overthrow the
government. Although the report mentioned many suspects, it did
not mention Makalo. Even Makalo, in his testimony, never mentioned
coup allegations.
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Makalo's testimony and other evidence contradicted the
core of his application: his claim that Gambia would persecute him
for sending his fugitive brother money. The date on the wanted
notice contradicted Makalo's story that he sent his brother money
in mid-July 2001 and that authorities had not learned of his
actions when he obtained a passport in August 2001. Moreover, the
passport was dated just eleven days before the bench warrant Makalo
submitted said Makalo was required to appear in court on criminal
charges. Makalo was never able to give a narrative that matched
the documents he submitted.
Makalo's story had other inconsistencies. Makalo could
not credibly explain how authorities learned he had sent Foday
money or how he had obtained documents from the imprisoned Kemo.
Makalo could not credibly explain why he testified that Kemo had
been killed when the State Department had reported that Kemo had
been released. He could not even remember when his father died or
when he last spoke to his brother and mother.
As we explained above, the IJ had good reason to doubt
much of Makalo's supporting evidence. And Makalo failed to provide
other, useful evidence. He did not submit birth certificates or
affidavits from family members verifying his story. He had no
evidence of when or how he received his documents (and indeed
contradicted himself about how those documents were sent).
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Substantial evidence also supported the IJ's and BIA's
conclusions that Makalo did not prove he would suffer persecution
based on a protected ground. Foday was charged with embezzlement,
and Makalo admittedly gave Foday, a fugitive, money to secretly
enter Gambia. Makalo provided no evidence other than his own
testimony that Makalo and Foday were wanted for political rather
than criminal reasons.
Makalo simply did not present significant credible
evidence that he was wanted by Gambian authorities or that he was
wanted for political reasons. We cannot say the record compels us
to reach a different conclusion than the IJ or the BIA.4
The petition for review is denied.
4
Although we deny the petition for review, we note the
poor quality of the recording of the IJ's decision as reflected in
the transcription, which has made review difficult.
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