United States Court of Appeals
For the First Circuit
No. 02-2346
SUSAN N. KALITANI,
Petitioner,
v.
JOHN ASHCROFT, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Howard, Circuit Judges.
Christopher W. Drinan was on brief for petitioner.
Allen W. Hausman, Senior Litigation Counsel, Office of
Immigration Litigation, Robert D. McCallum, Jr., Assistant Attorney
General, Civil Division, and Emily Anne Radford, Assistant
Director, Office of Immigration Litigation, were on brief for
respondent.
August 11, 2003
LYNCH, Circuit Judge. Susan Kalitani, a native and
citizen of Uganda, petitions for review of the denial of her
applications for asylum, withholding of deportation, and protection
under the United Nations Convention Against Torture. We affirm.
I.
Kalitani entered the United States on September 8, 1998,
ostensibly as a visitor for pleasure. After overstaying her visa,
she applied for asylum in August 1999 and received an interview
with an asylum officer, who recommended against granting asylum.
The INS began removal proceedings against Kalitani on March 6,
2000. Kalitani conceded the charge, declined to designate a
country for removal, and sought asylum, withholding of deportation,
relief under the U.N. Convention Against Torture ("CAT"),1 and, in
the event removal was necessary, voluntary departure. The
Immigration Judge ("IJ") held a hearing on the merits of Kalitani's
case on February 12, 2001, and on the same day issued an oral
opinion denying her petition. The Board of Immigration Appeals
("BIA") issued a summary affirmance without opinion on September
27, 2002. See 8 C.F.R. § 1003.1(a)(7) (2003)(formerly 8 C.F.R.
§ 3.1(e)(4)). This appeal followed.
1
United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, 1465
U.N.T.S. 85. See generally Mediouni v. INS, 314 F.3d 24, 26 n.2
(1st Cir. 2002).
-2-
Kalitani's asylum application and hearing testimony tell
a dramatic and harrowing story. She testified that if she returns
to Uganda, she will be killed by the government. Kalitani said
that her father, Wasswa Henry Kabazzi, was a former rebel turned
high-ranking military officer in Uganda when, in August 1995,
soldiers abducted him from the family home. The soldiers claimed
he was plotting to overthrow the government (which was controlled
by the National Resistance Army). Soldiers burst into the house
again at three o'clock in the morning on the same night. They
searched for papers and weapons, beating family members who
disclaimed knowledge of Kabazzi's activities. Kalitani, her
mother, and her siblings fled to Kalitani's grandmother's home in
another village, where they stayed for two weeks until soldiers
discovered them hiding there. As the soldiers came in the front
door of the house, Kalitani and her brother ran out the back. They
took refuge in the forest and hid there for five days, unaware of
what happened to the rest of the family. When they emerged from
the woods, they took shelter briefly with a local priest and then
sought protection from a group of rebels who were friends of their
father. The rebels were members of the Lord's Resistance Army,
known as the LRA.
Kalitani and her brother eventually decided to join the
LRA. She lived at one of their training camps for over a year and
a half, and belonged to the group for about two years in total. As
-3-
a woman, she said, she was made to cook for the rebels and help
with work around the camp. She also participated in some of the
group's more dangerous activities. Three times, Kalitani was sent
to spy on government barracks. In addition, she was trained to use
weapons, including an AK-47 assault rifle. When she left the camp
in the spring of 1997, armed with an AK-47, she received a
"serious" mission: to raid government barracks and set free a
number of rebel prisoners. There was a firefight during the
mission and Kalitani fired on government soldiers, although she
insisted that she did not kill anyone. She testified that she and
her brother were captured after the firefight, beaten and tortured
by soldiers of the National Resistance Army, and held prisoner in
an underground room for over four months. During that time, the
soldiers would periodically choose prisoners to execute. She
watched the soldiers execute her brother by firing squad.
Eventually, Kalitani managed to escape and she fled into
the forest. A pair of strangers rescued her and delivered her to
the home of a friend, where she learned that her sister and
grandmother had been killed. There was no news of her mother and
other sister. She stayed with her friend for nine months. Then,
by bribing border officials, Kalitani made her way into Kenya,
where she boarded a plane and traveled to the United States via
Switzerland and Denmark. She used a Ugandan passport and a U.S.
entry visa obtained for her by a person whom she variously
-4-
described as a friend of her father and as the father of a friend.
She was unwilling or unable to say how this person obtained the
passport or acquired the visa; Kalitani never personally visited an
American consulate or embassy. When Kalitani finally arrived in
Seattle on September 8, 1998, she did not reveal to U.S.
immigration authorities that she was fleeing Uganda. Instead, she
told them that she was simply visiting the country for pleasure,
consistent with the visa in her passport. Approximately a year
later, Kalitani gave birth to a daughter in the United States.
In addition to Kalitani's testimony, the IJ also
considered a 1997 State Department country conditions report for
Uganda that the government entered in evidence. The report
confirms that while the ruling government's human rights record
improved somewhat during 1996, "numerous, serious problems remain"
and that "[g]overnment forces committed or failed to prevent
extrajudicial killings of suspected rebels and civilians." The
report also mentions the LRA, which it describes as killing,
torturing, maiming, raping, and abducting large numbers of
civilians; displaying the mutilated bodies of their victims; and
terrorizing civilians by hacking off limbs and noses and breaking
legs with hammers. In addition, the report states that the LRA
"regularly abducted children of both sexes and virtually enslaved
them as concubines, guards, and soldiers."
-5-
Like the interviewing asylum officer before him, the IJ
found that the petitioner was simply not credible, citing specific
examples in her story of inconsistencies and unlikely assertions.
After reviewing her asylum application and testimony, the IJ
concluded:
The respondent's inconsistencies, which I have found
[and] which are stated in the record, which the asylum
officer found was not credible, which I agree with,
reflect[], and I so find[,] that the respondent's
testimony concerning the reasons why she is afraid to
return to Uganda are not credible. . . . A reasonable
person similarly situated as the respondent would not
fear, based on this record[,] returning to Uganda, and I
find that the respondent[, upon] returning to Uganda[,]
would not be persecuted or [have] a well-founded fear of
persecution for what is contained in the asylum
application . . . [or] her testimony in these
proceedings[,] nor for her race, religion, nationality,
membership in a particular social group or political
opinion. Consequently, her application for political
asylum will be denied as a matter of discretion.
The IJ then denied Kalitani's requests for withholding of
deportation and protection under CAT on essentially the same
grounds.
II.
The BIA's determination of an alien's eligibility for
asylum "must be upheld if supported by reasonable, substantial, and
probative evidence on the record considered as a whole." INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks
omitted); see Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003).
We may not disturb the decision of the BIA unless the evidence,
taken as a whole, would compel any reasonable adjudicator to reach
-6-
a contrary conclusion. 8 U.S.C. § 1252(b)(4)(B) (2000). Moreover,
Kalitani bears the burden of establishing her eligibility for
asylum. 8 C.F.R. § 208.13(a) (2000). She may do so by showing
either (1) that she has suffered past persecution on account of her
race, religion, nationality, membership in a particular social
group, or political opinion; or (2) that she has a well-founded
fear of suffering such persecution. Id. § 208.13(b); Fesseha v.
Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003). Because the BIA
affirmed without opinion, we review the decision of the IJ
directly. Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003).
The thrust of Kalitani's appeal is that the IJ's stated
reasons for doubting her credibility were not sufficient to justify
rejection of her claim. On this basis, she argues that the IJ's
decision is not supported by substantial evidence, and that the IJ
denied her due process of law by failing to consider all pertinent
evidence. We disagree.
A review of the record reveals that there were adequate
grounds for the IJ's finding that Kalitani's story was not
credible. Cf. Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir.
1999) ("[W]hen a hearing officer who saw and heard a witness makes
an adverse credibility determination and supports it with specific
findings, an appellate court ordinarily should accord it
significant respect."). First, there was reason to doubt
petitioner's identity. She testified at the hearing that her true
-7-
name is Susan Nakiyemba, but the passport and birth certificate she
produced, both procured in 1998, show her surname as Kalitani. Her
explanation for the discrepancy was that the passport and birth
certificate were obtained for her by another person, who added his
own surname. But she inconsistently described this benefactor as
"a friend of my father" and as "the father of my friend." Then,
she claimed that she was issued a visa to enter the United States
without ever appearing at the U.S. Embassy in Uganda or at any
other American embassy or consulate, and that she was issued a
Ugandan passport without a signature (which, of course, allowed her
later to add one). She could not explain how her birth certificate
was procured or recall why her passport bore a stamp for Kampala,
Uganda. These facts suggest either that the passport and visa were
fraudulently obtained or that Kalitani's story was not true.
Either way, the IJ properly relied on this evidence in finding that
Kalitani lacked credibility.
Second, aspects of Kalitani's testimony were inherently
incredible. When Kalitani was first interviewed by the asylum
officer, she incorrectly told him that an AK-47 assault rifle, a
weapon that she supposedly trained to use and that she testified
she had fired in the heat of battle, held only three or four rounds
of ammunition.2 The IJ also found it extremely unlikely that
2
At her hearing before the IJ, Kalitani attempted to correct
this error, testifying that she had never told the asylum officer
that the weapon held so few rounds. She explained that she meant
-8-
during her two years with the LRA, Kalitani participated in only
one "serious" mission and that she never saw the LRA engage in any
of the activities described in the country conditions report, as
she had testified.
Finally, the IJ observed Kalitani's demeanor and found
her evasive, less than candid, and unresponsive. The IJ even
warned Kalitani during the hearing (though he certainly was not
required to do so) that her credibility was an issue, and that a
credibility determination would be important to his decision
because she had offered no documentary or other evidence to
substantiate her claims. When asked why she applied for asylum,
Kalitani gave a surprisingly forthright answer that further
supports the IJ's refusal to believe her tale of persecution: she
said she applied for asylum because she had a baby (conceived and
born in the United States) and she realized her time to be in the
country legally was running out.
On this record, we cannot say that the IJ's decision was
error at all, much less that the evidence compelled the IJ to find
that Kalitani had met the standards for asylum. See Elias-
Zacarias, 502 U.S. at 481 n.1.
Kalitani's due process claim is also without merit: her
argument is not that the IJ ignored evidence; indeed, no ignored
to say the weapon held three or four magazines, each of which
contained 30 bullets.
-9-
evidence is specified. If her contention is simply that the IJ
should have noted other evidence supporting her credibility, it
fails. See Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000)
("Where, as here, the Board has given reasoned consideration to the
petition, and made adequate findings, we will not require that it
address specifically each claim the petitioner made or each piece
of evidence the petitioner presented." (quoting Martinez v. INS,
970 F.2d 973, 976 (1st Cir. 1992))). Kalitani's argument boils
down to an assertion that the IJ should have believed her. But the
IJ was not compelled to believe her, and substantial evidence on
the administrative record supports his decision not to do so.
Because Kalitani did not meet her burden to show
eligibility for asylum, she necessarily also fails to establish
eligibility for withholding of removal. Fesseha, 333 F.3d at 19
n.6; Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002). And given
the IJ's justifiable doubts about Kalitani's credibility, his
denial of relief under CAT is amply supported by the record. See
Guzman v. INS, 327 F.3d 11, 16-17 (1st Cir. 2003) (burden is on
petitioner under CAT to establish that torture is more likely than
not upon removal).
-10-
III.
We affirm the decision of the BIA denying the application
for asylum, withholding of removal, and protection under CAT.3
3
Petitioner was not granted the privilege of leaving the
country voluntarily and her petition does not challenge that
determination.
-11-