United States Court of Appeals
For the First Circuit
No. 09-1464
YA YA DEEN MARIKO AND TIRANKE KABA,
Petitioners,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS
Before
Lipez, Selya and Howard, Circuit Judges.
Randy Olen and Robert D. Watt, Jr. on brief for petitioners.
Tony West, Assistant Attorney General, Civil Division,
Jennifer Paisner-Williams, Senior Litigation Counsel, Office of
Immigration Litigation, and Yedidya Cohen, Trial Attorney, Office
of Immigration Litigation, on brief for respondent.
January 24, 2011
SELYA, Circuit Judge. The lead petitioner, Ya Ya Deen
Mariko, and the derivative petitioner, Tiranke Kaba, are husband
and wife.1 Both of them are Guinean nationals. They seek review
of a final order of the Board of Immigration Appeals (BIA), which
affirmed a decision of an immigration judge (IJ) denying
withholding of removal and protection under the Convention Against
Torture (CAT). They also seek review of the BIA's denial of their
motion to remand. Discerning no cognizable error, we reject the
petition.
I. BACKGROUND
The facts are straightforward. Mariko entered the United
States in late 2001, thus reuniting with Kaba, who had entered more
than a year earlier. Both petitioners were here illegally and, in
2004, the Department of Homeland Security initiated removal
proceedings. See 8 U.S.C. § 1182(a)(6)(A)(i), (7)(A)(i)(I). The
petitioners conceded removability but cross-applied for withholding
of removal and protection under the CAT.
1
We use the terms "lead" and "derivative" because, in his
application, Mariko described Kaba as a derivative beneficiary of
his claims for relief. The petitioners' brief continues this
usage. We note, however, that Mariko only applied for withholding
of removal and protection under the United Nations Convention
Against Torture (CAT). The statutory provision that the
petitioners cite, 8 U.S.C. § 1158(b)(3)(A), allows for derivative
status only when the lead petitioner applies for asylum. The
regulations concerning withholding of removal and CAT protection
make no allowance for derivative claims. See 8 C.F.R.
§ 1208.16(b), (c). Accordingly, derivative claims cannot be
prosecuted for withholding of removal or protection under the CAT.
See Warui v. Holder, 577 F.3d 55, 58 (1st Cir. 2009).
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The IJ convened a hearing on April 17, 2007. Mariko, the
only live witness, claimed that he feared persecution in his
homeland on account of his membership in the Guinea People's Rally
(RPG), a political party that opposed the party in power. He
professed himself to have been the RPG's "secretary for youth . . .
something like that," whose duties included recruiting new members,
campaigning, giving speeches, and working with young people. These
activities, he testified, led him into harm's way.
Mariko recounted that, on November 11, 2001, armed
soldiers broke up an RPG meeting and arrested him along with other
party members. He was beaten, brought to a military camp, placed
in a cell, and detained for approximately 19 days. His captors
accused him of trying to overthrow the government and tortured him
repeatedly. As a result of these beatings, Mariko sustained
injuries "everywhere" from his neck to his waist and bled profusely
from "tears" on his body. In addition, his thumb was permanently
damaged (though he could not remember when or how this occurred).
Mariko eventually escaped from the camp and made his way
to a friend's house. He later purchased a phony passport and
traveled to France. Once there, he purchased a second passport,
used it fraudulently to fly to Chicago, and then journeyed to Rhode
Island to join his wife.
Under cross-examination, Mariko said that he possesses a
birth certificate, Guinean passport, and national identification
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card. He told the IJ that his brother (who still lived in Guinea)
had procured these documents and mailed them to him in 2004 or
2005. He conceded that, when he received his identification card,
it bore both a signature and a fingerprint. Since the petitioner
had not been in Guinea since 2001, the signature and fingerprint
were necessarily bogus. Mariko further admitted that his passport
may have been obtained fraudulently.
To support his claim of mistreatment while in Guinea,
Mariko had introduced into evidence a summary of his medical
records. On cross-examination, he was unable to explain why his
medical records reflected injuries only to his thumb and ring
finger. He was equally at a loss to explain how this jibed with
his assertion that he was "wounded everywhere." His claim that he
had received the summary document by mail in either 2002 or 2003
was suspect on its face; the medical records bore a date of June 6,
2006.
Mariko's grasp of the politics of his homeland seemed
shaky. Though he correctly identified the leader of the RPG, he
evaded direct questions about significant events in the annals of
the party. In a similar vein, he failed to explain inconsistencies
between his testimony and his earlier affidavit in support of his
application for relief, including inconsistencies regarding the
frequency of the torture that he had endured.
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Faced with this scumbled record, the IJ denied the
application for withholding of removal and protection under the
CAT. The cornerstone of the IJ's decision was an adverse
credibility determination. Once Mariko's testimony was discounted
on that basis, what remained was insufficient to sustain the
petitioners' devoir of persuasion on their claims for relief.
The petitioners appealed to the BIA, challenging the
adverse credibility determination. They argued that the IJ (i)
erroneously concluded that Mariko's testimony lacked sufficient
detail; (ii) ascribed too much weight to Mariko's use of
questionable documents; and (iii) relied too heavily on Mariko's
inability to specify the date when he received the medical records.
On December 1, 2008 — while their appeal to the BIA was
pending — the petitioners filed a motion to remand. They theorized
that Kaba was newly eligible for asylum based upon changed
circumstances. In support, they cited (i) the birth of their
daughter, Su-ad, on September 17, 2008, and (ii) an opinion
recently issued by the Attorney General in an unrelated case. In
an order dated March 10, 2009, the BIA adopted and affirmed the
IJ's decision and simultaneously denied the motion to remand. With
respect to the latter, the BIA noted that Kaba had premised her new
asylum claim solely on a fear that her newborn daughter probably
would fall victim to female genital mutilation (FGM) in Guinea.
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Such a claim, the BIA concluded, was inadequate on its face. This
timely petition for judicial review followed.
II. ANALYSIS
On a petition for judicial review, we typically direct
our appraisal to the final orders of the BIA. Seng v. Holder, 584
F.3d 13, 17 (1st Cir. 2009). But where "the BIA has adopted the
IJ's decision in whole or in part, we review the pertinent portions
of the IJ's decision as well." Rivas-Mira v. Holder, 556 F.3d 1,
4 (1st Cir. 2009). This is such a case.
In conducting this review, we examine findings of fact
(including credibility determinations) under the substantial
evidence standard. López-Castro v. Holder, 577 F.3d 49, 52 (1st
Cir. 2009); Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).
This standard requires us to defer to the agency's findings as long
as they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Nikijuluw v.
Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). Absent an error of law, we
will reverse only if the record compels a conclusion contrary to
that reached by the agency.2 Chhay v. Mukasey, 540 F.3d 1, 5 (1st
Cir. 2008).
2
Abstract legal determinations are afforded de novo review,
subject to some measure of deference to the agency's interpretation
of statutes and regulations that fall within its ambit. See Seng,
584 F.3d at 17. This review modality is not implicated here.
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A. Adjudicated Claims.
We begin with the adjudicated claims for withholding of
removal and protection under the CAT.
1. Withholding of Removal. A well-defined legal
framework governs applications for withholding of removal. The
applicant must show that, independent of any presumption, there is
a clear probability that he will be subjected to persecution on
account of a statutorily protected ground upon repatriation. See
López-Castro, 577 F.3d at 52; Chhay, 540 F.3d at 6. For this
purpose, there are five statutorily protected grounds: race,
religion, nationality, membership in a particular social group, and
political opinion. 8 U.S.C. § 1231(b)(3)(B)(i).
In the case at hand, Mariko alleges persecution on
account of his political opinion, as manifested by his membership
in the RPG. This is a statutorily protected ground. Building on
that foundation, he rehearses the persecution that he claims to
have suffered in the past, asserts that the same regime remains in
power, and voices his fear of being harmed upon his return to
Guinea. The IJ and the BIA rejected this claim primarily because
of doubts about the veracity of Mariko's account of past
persecution.
Before turning to the supportability of this
determination, we pause to make an important temporal point.
Mariko filed his application for relief after May 11, 2005. Thus,
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his case is controlled by the credibility standard embedded in the
REAL ID Act of 2005. Pub. L. No. 109-13, § 101(a)(3), 119 Stat.
302, 303 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). In gauging
credibility under that standard, an IJ is directed to consider the
"totality of the circumstances, and all relevant factors,"
including but not limited to the alien's demeanor, responsiveness,
and prior statements. Id. The IJ may also consider, where
relevant, the plausibility of the alien's story and the presence or
absence of corroborative evidence. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). If the IJ reasonably deems the alien's
testimony "speculative or unworthy of credence," that testimony may
be either discounted or disregarded entirely. Rivas-Mira, 556 F.3d
at 4 (quoting Bebri v. Mukasey, 545 F.3d 47, 50 (1st Cir. 2008)).
In denying withholding of removal, the IJ concluded that
Mariko's tale was not believable. Mariko strives to persuade us
that this adverse credibility determination was not predicated on
substantial evidence. We are not convinced.
The IJ's determination was based on a series of specific
findings. First, the IJ concluded that Mariko's use of fraudulent
identification documents undermined his credibility. The factual
premise on which this conclusion rests is rock-solid: Mariko
admitted, in effect, that his identity card bore a signature and a
fingerprint that did not belong to him. He also conceded that he
had used fraudulent passports in the course of his journey to the
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United States and that the passport currently in his possession
might be fraudulent. Though there may be valid reasons for an
émigré to make use of fraudulent documents to escape from
persecution, this case bears no such hallmark. After all, Mariko
obtained a third fraudulent passport and the bogus identification
card after he was safely within the United States. Moreover, he
testified that his motivation behind obtaining these documents was
that he "got the lottery" and "wanted to get some documents from
[his] country." On this record, the IJ was entitled to draw an
inference of untrustworthiness from this serial use of fraudulent
documentation. See Olujoke v. Gonzales, 411 F.3d 16, 22 n.5 (1st
Cir. 2005).
A second data point to which the IJ adverted concerned
the inconsistencies between Mariko's words and the medical records.
In his testimony, Mariko alleged that soldiers had subjected him to
full-body beatings and caused numerous "tears" in his skin. But
the medical records noted only a hand injury. Mariko was unable
either to explain this discrepancy or to pin down the time when the
medical records were generated.
Third, the IJ found Mariko's professed relationship to
the RPG to be "vague" and his testimony on this point lacking in
detail. As an example, the IJ noted Mariko's inability to define
his role in the organization. We view these findings as part and
parcel of the IJ's global finding that Mariko's demeanor was
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disconcerting (and, thus, suggestive of untruthfulness). In this
regard, the IJ noted that the pace of Mariko's testimony "slowed
perceptibly" when he was asked about his potential involvement.
Finally, the IJ found significant inconsistencies between
the affidavit that Mariko submitted in support of his original
application for relief and his hearing testimony. These
inconsistencies related to such things as the beatings, his
detention, and his interrogation. For example, in his affidavit
Mariko vouchsafed that he was interrogated on each of the 19 days
that he was detained and beaten each time that he was interrogated.
In his testimony, however, he said that he was beaten only three to
five times during the entire 19-day span.
To bolster their argument that the IJ's adverse
credibility determination was not supported by substantial
evidence, the petitioners attempt to trivialize the individual
failings and inconsistencies catalogued by the IJ. But the whole
sometimes can exceed the sum of the parts, and the appropriate test
focuses on the totality of the circumstances. The IJ's findings,
in cumulation, constitute substantial evidence. See Pan v.
Gonzales, 489 F.3d 80, 86 (1st Cir. 2007) ("Some of these
inconsistencies, in isolation, may seem like small potatoes. What
counts, however, is that their cumulative effect is great."). The
record evidence is not such as to compel a reasonable factfinder to
make a contrary determination and, thus, the IJ's assessment of
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Mariko's credibility deserves our approbation. See Da Silva, 394
F.3d at 4-5; see also 8 U.S.C. § 1252(b)(4)(B). Given that
supportable determination, it follows inexorably that the BIA's
denial of Mariko's application for withholding of removal must be
upheld.
2. Protection under the CAT. This leaves Mariko's claim
for protection under the CAT. To succeed on this claim Mariko had
to prove that, more likely than not, he would be tortured if
deported to his homeland. See 8 C.F.R. § 1208.16(c)(2); see also
Ahmed v. Holder, 611 F.3d 90, 97-98 (1st Cir. 2010).
On the facts of this case, Mariko's CAT claim is
inextricably intertwined with his withholding of removal claim.
Thus, what we have said about the supportability of the adverse
credibility determination dooms Mariko's claim for CAT protection
just as surely as it doomed his claim for withholding of removal.
B. Motion to Remand.
The last leg of our journey tracks the BIA's denial of
the petitioners' motion. The petitioners styled their motion as a
motion "to remand." This nomenclature does not affect the
applicable legal framework. See Conteh v. Gonzales, 461 F.3d 45,
63-64 (1st Cir. 2006). When, as in this case, an appealing alien
has filed a motion that seeks to have the BIA return an appealed
case to the IJ for further proceedings based on newly available
information, that motion, however denominated, must satisfy the
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requirements that attend a motion to reopen. See Falae v.
Gonzales, 411 F.3d 11, 14 (1st Cir. 2005); In re Coelho, 20 I. & N.
Dec. 464, 471 (BIA 1992).
The BIA may rely on any of three independent grounds in
denying a motion to reopen: failure to make out a prima facie case
for the relief sought; failure to identify new and material
evidence, previously unavailable; or, even if these requirements
are met, failure to establish an entitlement to the discretionary
relief sought. INS v. Doherty, 502 U.S. 314, 323 (1992). Here,
the BIA denied the petitioners' motion on the first ground. We
review this denial for abuse of discretion. Fesseha v. Ashcroft,
333 F.3d 13, 20 (1st Cir. 2003). We will interfere with the BIA's
exercise of discretion only if it appears that the BIA made "an
error of law or acted in a manner that is fairly characterizable as
arbitrary or capricious." Falae, 411 F.3d at 14.
The motion to remand asserted that Kaba was newly
eligible to apply for asylum due to changed circumstances.3
Pertinently, the term "changed circumstances" is a term of art. It
means "changes in the applicant's circumstances that materially
affect the applicant's eligibility for asylum, including changes in
applicable U.S. law and activities the applicant becomes involved
3
Originally, both Mariko and Kaba were time-barred from
pursuing asylum because each of them was in the United States for
more than a year before joining any application for relief. See 8
U.S.C. § 1158(a)(2)(B); Chhay, 540 F.3d at 4.
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in outside the country of feared persecution that place the
applicant at risk." 8 C.F.R. § 1208.4(a)(4)(i)(B). In support,
the petitioners cited two items: the birth of their daughter, Su-
ad, on September 17, 2008,4 and the Attorney General's opinion in
Matter of A-T, 24 I. & N. Dec. 617 (A.G. 2008). We examine each
item.
The petitioners' claim that Su-ad's birth constituted a
material change in circumstances rests on an allegation that both
Kaba and her older daughter had been subjected to FGM in Guinea.
The petitioners maintained that, for this reason, they feared that
Su-ad would suffer the same fate if the family returned to that
country.
The BIA rejected this proposition, relying on its own
precedent as well as jurisprudence from this court. In Matter of
A-K, 24 I. & N. Dec. 275 (BIA 2007), the BIA concluded that a
father was not eligible for either asylum or withholding of removal
based on his claim that his United States citizen daughters would
be subjected to FGM in his homeland. Id. at 277-78.
Matter of A-K is not an outlier. We, too, have affirmed
BIA decisions denying asylum based on potential persecution of
family members. Thus, in Kechichian v. Mukasey, 535 F.3d 15 (1st
Cir. 2008), we held that the BIA did not abuse its discretion in
4
Because Su-ad was born in the United States, she — unlike
her parents — is a United States citizen. See United States v.
Wong Kim Ark, 169 U.S. 649, 702 (1898).
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denying a motion to reopen based on the potential persecution of
the alien's son. Id. at 22. The same principle anchored our
decision in Burbiene v. Holder, 568 F.3d 251, 254 n.3 (1st Cir.
2009).
Those decisions are controlling here. Although a child
may be a derivative beneficiary of a parent's claim for asylum, the
grounds for asylum must relate directly to the parent's situation.
There is no authority, either statutory or in the case law, that
indicates that the parent may, in effect, be a derivative
beneficiary of her child's asylum claim. The BIA was, therefore,
warranted in refusing to reopen the case to allow Kaba to pursue a
theory on which she could not prevail.
We deal next with the petitioners' asseveration that
Matter of A-T represented a "change[] in applicable U.S. law,"
which entitles Kaba to asylum. This asseveration lacks force.
In Matter of A-T, the Attorney General vacated the BIA's
denial of an adult woman's application for withholding of removal.
24 I. & N. Dec. at 617-18. The Attorney General concluded that the
agency had erred in finding that, because FGM "cannot occur more
than once" to any one person, the application had to be denied on
the ground that the feared future persecution could not "take
precisely the same form as past persecution." Id. at 621. The
Attorney General instructed the BIA, on remand, to determine
whether the fact that the alien had been subjected to FGM in the
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past triggered a presumption of a continuing threat to her life or
freedom on account of her membership in a particular social group
(presumably women who had been subjected to FGM). Id. at 623; see
also 8 C.F.R. § 1208.16(b)(1)(i).
This opinion does not help the petitioners. While Kaba
had undergone FGM as a child in Guinea, her claim of eligibility
for asylum was not based either on her plight or on her membership
in a class of females who had been similarly brutalized. Rather,
Kaba premised her claim on a fear that her daughter would be
subjected to FGM if she were relocated to Guinea. Matter of A-T
is, therefore, not on point.
In an effort to detour around this reasoning, the
petitioners suggest in this court, for the first time, that Kaba
herself harbors a well-founded fear of future persecution based on
her childhood experience with FGM. This suggestion comes too late
in the day. A petitioner must exhaust her administrative remedies
by presenting each of her claims face up and squarely to the
agency. See Chhay, 540 F.3d at 5-6. This court cannot consider an
unexhausted claim on a petition for judicial review. See id. This
restraint is consistent with the statutory directive that statutory
authority allows review of a final removal order only after "the
alien has exhausted all administrative remedies available to the
alien as of right." 8 U.S.C. § 1252(d)(1); see also Makoul v.
Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004) (explaining that theories
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not seasonably advanced before the BIA cannot be presented for the
first time in the court of appeals).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review in all of its particulars.
So Ordered.
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