Not for Publication in West's Federal Reporter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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