Kiyaga v. Ashcroft

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 03-1272

HENRY KIYAGA,
Petitioner,

v.

JOHN ASHCROFT, Attorney General,
Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before
Selya, Circuit Judge,
Stapleton,* Senior Circuit Judge,
and Howard, Circuit Judge

Monique H. Kornfeld, for petitioner.
Margaret K. Taylor, with whom Robert D. McCallum, Jr.,
Assistant Attorney General, Civil Division, Mark C. Walters,
Assistant Director, and Jacqueline R. Dryden, Office of Immigration
Litigation, United States Department of Justice, Civil Division,
were on the brief, for respondent.

October 8, 2003

* Of the Third Circuit, sitting by designation.
 STAPLETON, Circuit Judge.

I.

Henry Kiyaga (“Petitioner”), a citizen of Uganda, appeals

the decision of the Board of Immigration Appeals (“BIA”), which

affirmed, without opinion, the Immigration Judge’s (“IJ”) denial of

his application for asylum. The IJ held that Petitioner was barred

from being granted asylum by 8 U.S.C. § 1101(a)(42)(B) which

stipulates that an alien is not a refugee for purposes of asylum if

he has persecuted others on account of nationality or political

opinion. Petitioner challenges this holding. He also alleges that

the BIA erred in applying its summary affirmance procedure to his

case.

II.

Petitioner’s military service in Uganda lasted from 1985

to 1999. In 1985, he began his military career by joining the

Federal Democratic Army (“FDA”), a guerilla group opposing then-

Ugandan President Otobe. Another guerilla group, the National

Resistance Army (“NRA”), was commanded by Yoweri Museveni. The NRA

toppled the existing Ugandan government in 1986 and integrated the

FDA and other rival factions into one army. Petitioner served with

the NRA, which later changed its name to the Ugandan People’s

Defense Force (“UPDF”), from 1986-1999. Petitioner was placed in

the mobile unit of the Fourth Division. During that period,

Petitioner was involved in several regional conflicts in Uganda,

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Rwanda, and Zaire. Zaire subsequently became the Democratic

Republic of Congo (“the Congo”).

In 1999, Petitioner was imprisoned by the UPDF.

Petitioner asserts that he was jailed for complaining about the

UPDF’s presence in the Congo, and the death of so many UPDF

soldiers in the conflict. Petitioner was charged with planning to

plot a coup against the UPDF, conspiring to kill fellow soldiers,

conspiring to control Kisangani, Congo, and insubordination.

Kiyaga asserts that he was tortured while in prison. At the IJ

proceeding, he provided photographic evidence of his injuries that

he claims resulted from the torture. After a few days of

imprisonment, Kiyaga was allowed to escape. In October, 1999,

Kiyaga fled to the United States.

III.

Kiyaga applied for asylum, claiming that he had suffered

past persecution and had a well-founded fear of future persecution.

8 U.S.C. § 1158(b)(1). His application was denied. Although the

IJ concluded that Petitioner had carried his burden of showing past

persecution, he held that asylum was barred by 8 U.S.C. §

1101(a)(42)(B), which provides as follows:

The term “refugee” does not include any person
who ordered, incited, assisted, or otherwise
participated in the persecution of any person
on account of race, religion, nationality,
membership in a particular social group, or
political opinion.

After concluding that Petitioner had the burden of proving he was

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a refugee, the IJ found that Petitioner’s insistence that he had

not persecuted others on political grounds was simply not credible

and, accordingly, insufficient to carry that burden. The IJ went

on to find that the “documentary evidence in the record, as well as

the inconsistencies within the [Petitioner’s] testimony regarding

the killing of civilians, establish by a preponderance of the

evidence that the [Petitioner] persecuted others.”

More specifically, the IJ found that “the record

overwhelmingly establish[ed] that the UPDF, including the Fourth

Division, was directly responsible for human rights violations

against civilians, on account of their nationality and political

opposition towards the ruling government.” The court also pointed

to specific atrocities committed by members of Petitioner’s unit

and division, which occurred while Petitioner was a member of that

force. The IJ, citing Fedorenko v. United States, 449 U.S. 490,

494 (1981), held the Petitioner accountable for the actions of his

mobile brigade unit because “he was present when these incidents

happened, he was issued a uniform and armed with a rifle to

patrol.” The court found that although the Petitioner claimed that

he never harmed civilians, the fact that he supplied soldiers with

food, clothing, and other supplies assisted the soldiers in

persecuting others. The IJ stated that “[b]ecause the [Petitioner]

did not act to stop civilian killings, he enabled persecution on

account of nationality and political opinion.” Id. Finally, the

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IJ noted that, although “activity directly related to a civil war,

such as forced recruitment, destruction of property, military

attacks or mere membership in an organization is not necessarily

persecution,”1 the Petitioner “was involved in activities beyond

the ‘natural occurrences’ of civil war.” The IJ based this finding

on the fact that Petitioner was a member of a governmental

organization that participated in gross human rights violations on

account of nationality and political opinion.

The IJ ordered Petitioner removed to Uganda, and the BIA

summarily affirmed the IJ’s decision without opinion. 8 C.F.R. §

3.1(e)(4) (now 8 C.F.R. § 1003.1(e)(4)).

IV.

Kiyaga timely petitioned this Court for review of the

BIA’s judgment. We have jurisdiction to review the final order of

removal pursuant to 8 U.S.C. § 1252(a). When the BIA applies its

streamlined affirmance-without-opinion procedure, see 8 C.F.R. §

1003.1(e)(4), we review the decision of the IJ. See Albathani v.

INS, 318 F.3d 365, 378 (1st Cir. 2003) (stating that a court bases

its review on the IJ’s decision and the record on which it is based

when the 8 C.F.R. 3.1(a)(7)2 streamlining procedure is used); El

Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003) (applying

1
See Matter of Rodriguez-Majano, 19 I. & N. Dec. 811 (BIA
1988).
2
Now 8 C.F.R. § 1003.1(a)(7).

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Albathani to the affirmance without opinion procedure in 8 C.F.R.

§ 3.1(e)(4)).

V.

To be eligible for asylum, an alien has the burden of

showing that he or she is a “refugee.” 8 U.S.C. § 1158(b)(1);

Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003). As we have

indicated, under § 1101(a)(42)(B), an alien cannot be a “refugee”

if he or she has assisted or otherwise participated in the

persecution of others on account of political opinions. Moreover,

as we have further noted, the IJ concluded that if there is

evidence of such assistance or participation, the “applicant [has]

the burden of proving by a preponderance of the evidence that he or

she did not so act.” As is evident from Petitioner’s briefing and

as expressly confirmed by Petitioner’s counsel at oral argument,

Petitioner does not challenge any of these legal propositions. His

argument is rather that the record will not support a finding that

asylum is barred by § 1101(a)(42)(B). We cannot agree.

Evidence was produced before the IJ tending the show that

the Petitioner had assisted in the persecution of others on account

of a prohibited ground. This included evidence that the UPDF

forcefully relocated civilians into “protected camps.” Civilians

were beaten if they refused to comply. See Amnesty International,

Uganda: Breaking the Circle: Protecting Human Rights in the

Norther War Zone (1999). If civilians left the protected camps,

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they were assumed to be members of the opposing force. Evidence

also indicated that the UPDF mobile troops had shelled villages

where civilians had returned from the protected camps to cultivate

crops. Finally, there was evidence that UPDF soldiers in the

Fourth Division were involved in the lynching of civilians on

August 16, 1996, in Gulu, Uganda. This was Petitioner’s military

division and he admits to being in Gulu at this time. Additional

evidence indicated that the mobile patrol in which Petitioner

served was involved in killing 30 children in the Kitgum District

in March of 1998, when it ambushed a group of opposing forces who

were holding the children captive. Finally, evidence was produced

that Petitioner had indicated to an asylum officer in an interview

that he had killed or harmed non-combative civilians on four

different occasions in Uganda.

In response to this evidence, Petitioner attempted to

carry his burden of showing he was a refugee by offering his own

testimony that he had never participated in persecuting others.

The IJ concluded, however, that this testimony was not credible.

This credibility determination effectively resolves Petitioner’s

asylum claim because no other evidence was presented to the

Immigration Court that could prove by a preponderance of the

evidence that Petitioner did not persecute or assist in the

persecution of others. Therefore, if the IJ’s credibility

determination survives our scrutiny, we must deny the petition for

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review.

The IJ’s credibility determination is reviewed for

substantial evidence and “must be upheld if supported by

reasonable, substantial and probative evidence on the record

considered as a whole.” Mendes v. INS, 197 F.3d 6, 13 (1st Cir.

1999) (internal quotations omitted); see also Mediouni v. INS, 314

F.3d 24, 26-27 (1st Cir. 2002). We will reverse a finding of fact,

such as a credibility determination, only if “the evidence is so

compelling that no reasonable fact-finder could fail to reach the

contrary conclusion.” Oliva-Muralles v. Ashcroft, 328 F.3d 25, 27

(1st Cir. 2003).

The IJ’s conclusion that Petitioner’s denial of

participation in persecution lacks credibility was based primarily

on the fact that Petitioner provided inconsistent and evasive

responses to questions regarding his activities while serving in

the UPDF. As the IJ explained:

When asked about the one time he served on the
front line, he says he never killed any
civilian. On another occasion, he says he
never killed any civilians intentionally,
although he may have killed a civilian
accidentally. When asked by the Service on
cross-examination, he was unable to give a
straight answer.

The IJ also pointed out the Assessment to Refer, which asserted

that Petitioner had admitted to killing civilians on four

occasions, and the statement about civilians having to die if they

were caught between enemy forces. There is substantial evidence

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supporting these conclusions of the IJ.

In the Assessment to Refer, the asylum officer who

interviewed Petitioner asserted that Petitioner had admitted to

killing non-combative civilians on four separate occasions in

Uganda. He also quoted the Petitioner as stating, “if they

[civilians] were in the middle, they had to die, ... we were

ordered to do so, we had to fight.”

At Petitioner’s first hearing, he provided the following

responses to the government’s questions:

Q. Sir, did you see civilians being killed
while you were involved in combat in the army?

A. Yes, I did.

. . .

Q. Sir, did you ever kill civilians during
your period in the army?

A. No, in time I have never killed a
civilian. I have never killed a civilian
intentional unless it happened by accident[.]
[B]ut I have never killed any civilian
intentionally.

. . .

Q. Sir, did you ever – do you believe that
you ever killed civilians accidentally?

A. Well, it could be, I cannot say no or yes,

. . .

At Petitioner’s second removal hearing on April 5, 2001,

he stated the following:

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 Q. Sir, is it your testimony that throughout
your 13 year military career, you were never
involved in the killing of civilians?

A. Personally, the entire period I was in the
military, I have never killed a civilian nor
tortured one.

. . .

Q. Sir, did you tell the asylum officer
during your asylum interview that you were
involved in the killing of civilians?

A. That question was raised to me and I
answered him directly that I have never
participated in the killing of civilians.

Petitioner was confronted with the Assessment to Refer

memo, written by the asylum officer, quoting the “if [civilians]

were in the middle, they had to die,” language. The following

colloquy took place:

Q. Sir, . . . the document says that the
applicant admitted that he has killed or
harmed non-combat civilians on four different
occasions.

. . .

Q. Sir, is now your testimony that you did
not say that you had killed or harmed
civilians on four different occasions?

. . .

A. Unless the officer did not understand the
language I tried to explain to him, but I
remember the question was raised to me and I
answered that I have never participated in the
killing of civilians.

The Petitioner explained that the interview with the

asylum officer was conducted in English, and that he had had a

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difficult time communicating in that interview. Then the following

exchange occurred:

A. Sir, did you say and I am quoting
“Civilians were in the middle and they had to
die?”

. . .

Q. Yes, when the question was raised to me, I
answered him and said, and tried to explain to
him that when there is fighting going on and
the civilians are in the middle, they can
easily be killed, but I have never told him
that I have killed any civilian and I
personally have never intentionally killed any
civilian.

Petitioner cites Hartooni v. INS, 21 F.3d 336, 342 (9th

Cir. 1994), for the proposition that the IJ must provide a

legitimate articulable basis for his credibility determination. He

asserts that the IJ failed in this respect because he limited his

analysis of Petitioner’s credibility to only one area, his

testimony about whether he had killed civilians, when the whole of

his testimony was otherwise consistent and believable.

Hartooni holds that the IJ “must have a legitimate

articulable basis to question the petitioner’s credibility, and

must offer a specific, cogent reason for any stated disbelief.” 21

F.3d at 342. As we have heretofore explained, however, the IJ did

provide a legitimate articulable basis to question the Petitioner’s

credibility.

Petitioner also quotes a page from the Basic Law Manual,

produced by the INS, as authority for the proposition that “a claim

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may be credible even though the claimant later submits information

not submitted at the first examination.” U.S. Dep’t of Justice,

Immigration and Naturalization Serv., The Basic Law Manual 105

(1994). Petitioner alleges that he did not have an interpreter at

the first examination, which resulted in perceived inconsistencies

with later interviews in which an interpreter was provided. He

asserts his testimony at the removal proceeding was not truly

inconsistent, but simply an attempt to clarify his earlier

statements in a logical and direct manner.

The discrepancy in Petitioner’s testimony does not simply

reflect information that the Petitioner forgot to include in his

first interview, which he is later elaborating or clarifying, as

the cited passage in the Basic Law Manual appears to contemplate.

It is an inconsistency in the testimony that makes it plausible,

even likely, that the Petitioner is telling less than the whole

truth regarding his conduct toward civilians.

Petitioner also alleges that the inconsistency in his

testimony was not material because he consistently testified that

he did not intentionally kill civilians. He insists that an

inconsistency must “shut off a line of inquiry which is relevant to

the alien’s eligibility and which might well have resulted in a

proper determination that he be excluded.” Matter of Bosuego, 17

I. & N. Dec. 125 (BIA 1979); accord Solis-Muela v. INS, 13 F.3d

372, 376-77 (10th Cir. 1993). Even if we were to apply a

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materiality standard, however, Petitioner’s inconsistent testimony

regarding his participation in the killing of civilians was clearly

relevant to an inquiry into the presence or absence of

participation in persecution.

Finally, Petitioner cites Qiu v. Ashcroft, 329 F.3d 140,

156 (2d Cir. 2003), for the proposition that courts “have ...

prodded immigration tribunals to give petitioners a chance to

respond to the adjudicator’s concerns about ‘missing’ or

inconsistent evidence or testimony.” Petitioner asserts that the

IJ failed to give his asylum application the benefit of doubt and

assist him in clarifying and substantiating his case. But

Petitioner was given an opportunity to respond to the government’s

concerns about the inconsistent testimony. His answers to this

questioning were not consistent or straightforward.

We hold that the IJ’s credibility determination is

supported by substantial evidence. The Petitioner’s testimony was

not only inconsistent with the testimony he gave at an earlier

interview, it was inconsistent during the removal hearing itself.

He at first states, unequivocally, that he killed no civilians

during his military service. He then allows that he may have

“accidentally” killed some. We would also note, although the IJ

was not explicit in basing his credibility determination on this

point, that Petitioner testified that he had no reason to believe

that the Fourth Division of the UPDF had killed civilians.

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However, evidence in the record indicated that members of the

Fourth Division participated in the lynching of civilians in Gulu

at the time Petitioner was stationed there. See Aguilar-Solis v.

INS, 168 F.3d 565, 570-71 (1st Cir. 1999) (stating that it is not

required that “a reviewing court must take every applicant’s

uncontradicted testimony at face value, for testimony is sometimes

internally inconsistent or belied by prevailing circumstances” and

that “when a hearing officer who saw and heard a witness makes

adverse credibility determination and supports it with specific

findings, an appellate court ordinarily should accord it

significant respect”).

For these reasons, the IJ’s credibility determination

withstands Petitioner’s challenge. Having found that adverse

credibility determination supported by substantial evidence, the

Petitioner did not meet his burden of showing that the persecution-

of-others bar did not apply to him. Therefore, we will deny the

petition for review.

VI.

Petitioner argues that the BIA erred in applying 8 C.F.R.

3.1(e) (now 8 C.F.R. § 1003.1(e)), to affirm the result of the IJ’s

decision without opinion.

8 C.F.R. § 1003.1(e)(4), the section used by the BIA to

affirm without opinion states, in pertinent part:

Affirmance without opinion. (I) The Board
member to whom a case is assigned shall affirm

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 the decision of the Service or the immigration
judge, without opinion, if the Board member
determines that the result reached in the
decision under review was correct; that any
errors in the decision under review were
harmless or nonmaterial; and that

(A) The issues on appeal are squarely
controlled by existing Board or federal court
precedent and do not involve the application
of precedent to a novel factual situation; or
(B) The factual and legal issues raised on
appeal are not so substantial that the case
warrants the issuance of a written opinion in
the case.

Petitioner asserts that the IJ’s decision was not in

conformity with the law or applicable precedents and was the result

of clearly erroneous factual determinations. It is a subject of

some debate whether we may review the BIA’s decision to apply the

streamlining regulation, itself. See Albathani, 318 F.3d at 378

(“Were there evidence of systemic violation by the BIA of its

regulations, this would be a different case. We would then have to

face, inter alia, the INS’s claim that the decision to streamline

an immigration appeal is not reviewable by the courts because these

are matters committed to agency discretion.”). Because we conclude

that the IJ’s credibility determination is clearly supported by

substantial evidence, the Petitioner failed to meet his burden of

showing his “refugee” status. Therefore, we shall dispose of

Petitioner’s argument without deciding whether we may review the

BIA’s decision to apply the streamlining regulation.

The petition for review is DENIED.

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