Afful v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1569

MARY NEWMAN AFFUL,

Petitioner,

v.

JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before

Torruella, Lynch and Lipez,
Circuit Judges.

Randall L. Johnson, with whom Johnson & Associates, P.C. was
on brief, for petitioner.
Frances M. McLaughlin, Attorney, Office of Immigration
Litigation, Civil Division, with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, and Linda S. Wendtland, Assistant
Director, were on brief, for respondent.

August 6, 2004
 TORRUELLA, Circuit Judge. Mary Newman Afful, a native

and citizen of Ghana, petitions for relief from an order of the

Board of Immigration Appeals ("BIA") affirming the Immigration

Judge's decision. Afful argues that the BIA committed three

reversible errors: (1) affirming the Immigration Judge's denial of

her applications for political asylum and withholding of

deportation; (2) affirming the Immigration Judge's denial of her

application for suspension of deportation as pretermitted; and (3)

denying her motion to remand the case to an Immigration Judge. We

affirm the BIA's order in full.

Afful entered the United States at New York, New York in

October 1989 using another person's passport. On March 16, 1995,

the Immigration and Naturalization Service ("INS")1 issued an order

to show cause charging Afful with entering the United States on

May 27, 1985, without inspection. At a hearing before the

Immigration Judge on October 4, 1995, Afful admitted the

allegations against her, conceded removability, and requested

asylum, withholding of removal, and suspension of deportation. On

September 29, 1997, the INS amended the Order to Show Cause to read

that Afful entered the United States in October 1989. On the same

day, the Immigration Judge held a hearing on Afful's asylum

1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.

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application, continuing the case to May 29, 1998. On October 23,

1997, the INS added a charge for procuring entry into the United

States through fraud or willful misrepresentation of material fact

because Afful had admitted at the September 29, 1997 hearing that

she had used another person's passport to enter the United States.

On October 1, 1998, the Immigration Judge denied Afful's

applications for asylum, withholding of deportation, suspension of

deportation and voluntary departure. Afful appealed to the BIA on

November 2, 1998. On June 19, 2002, Afful filed a motion to remand

to the Immigration Judge so that she could apply for adjustment of

status due to the filing of an approved Form I-140 filed by her

employer. On March 29, 2003, the BIA affirmed the Immigration

Judge's decision and denied Afful's motion to remand. This appeal

followed.

I. Denial of Asylum and Withholding of Deportation

Section 208(a) of the Immigration and Nationality Act

("INA"), 8 U.S.C. § 1159(a), authorizes the Attorney General to

exercise his discretion to grant asylum to refugee aliens. The

alien bears the burden of demonstrating eligibility for asylum.

See Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003). An

applicant may meet that burden by demonstrating past persecution or

a well-founded fear of future persecution based on "race, religion,

nationality, membership in a particular social group, or political

opinion." Id. (quoting 8 C.F.R. § 208.13(b)(1)) (internal

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quotation marks omitted). To establish past persecution, an

applicant must provide "conclusive evidence" that she was targeted

on any of the five grounds. Fesseha v. Ashcroft, 333 F.3d 13, 18

(1st Cir. 2003) (quoting Albathani, 318 F.3d at 373). To show a

well-founded fear of future persecution, an applicant must meet

both subjective and objective prongs. Id. (citation omitted). To

satisfy the objective prong, an applicant's testimony alone may be

sufficient, but it must constitute credible and specific evidence

of a reasonable fear of persecution. El Moraghy v. Ashcroft, 331

F.3d 195, 203 (1st Cir. 2003). To meet the subjective prong, the

applicant must show her fear is genuine. See Aguilar-Solís v. INS,

168 F.3d 565, 572 (1st Cir. 1999).

"Determinations of eligibility for asylum or withholding

of deportation are reviewed under the substantial evidence standard

. . . ." Fesseha, 333 F.3d at 18. The agency decision is "upheld

if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole." Id. (quoting INS v.

Elías-Zacarías, 502 U.S. 478, 481 (1992)). Under the substantial

evidence standard, "[t]o reverse the BIA finding, we must find that

the evidence not only supports that conclusion, but compels it

. . . ." Elías-Zacarías, 502 U.S. at 481 n.1 (emphasis in

original).

Afful testified that she had a fear of persecution on

account of her affiliation with the Popular Front Party ("PFP"), a

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political group opposed to the military regime in Ghana run by

General Jerry Rawlings. According to her testimony, Afful attended

PFP rallies two to three times a month. She helped her two

brothers, Safo-Adu and Joe Donkor, by distributing leaflets,

participating in meetings, and keeping important party documents

that were critical of military rule. She testified that her

brother took the papers from her around 1984. When the Immigration

Judge asked Afful what happened in the five years between 1984 and

1989 when she left Ghana, Afful testified that her brother was

arrested and that the government was mistreating people. Afful

testified that her brother Safo-Adu, a leader of the PFP, lost his

property and was arrested at least three times by the government

because of his involvement with the PFP. He was never physically

harmed. Her brother Joe Donkor lost his job and had his house

ransacked due to his membership in the PFP. Afful testified that

the government was aware of her membership with the PFP because of

her affiliation with her brothers, although she was never arrested.

Afful admitted that she used another person's passport to

enter the United States. When asked why she had pled to entering

the United States without inspection when she had actually entered

with another person's passport, Afful responded that she was

afraid. The Immigration Judge then asked Afful if she told her

attorneys that she entered the United States using another person's

passport. After the Immigration Judge admonished Afful several

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times to tell the truth, Afful testified that she had not told her

attorneys but then contradicted herself and said that she had.

Afful's asylum application stated that she entered the

United States on May 27, 1985; during testimony she admitted,

however, that she actually entered in October 1989. The

Immigration Judge asked Afful whether she told her attorneys about

the incorrect date before or after it was filed with the INS.

Afful had to be reminded repeatedly to answer the question and tell

the truth fully before Afful stated that she told her attorneys

about the incorrect date after the application was submitted to the

INS. The Immigration Judge also asked Afful whether she told the

immigration officer at her asylum interview about the incorrect

date. Afful admitted that she did not tell the immigration officer

about the incorrect date and instead told the officer that

everything in her application was true.

A. Credibility Determination

The Immigration Judge found that Afful's testimony

concerning her fear of returning to Ghana was not credible.

"[W]hen a hearing officer who saw and heard a witness makes an

adverse credibility finding and supports it with specific findings,

an appellate court ordinarily should accord it significant

respect." Aguilar-Solís, 168 F.3d at 571 (citations omitted). We

begin by confirming that the Immigration Judge "offer[ed] a

specific, cogent reason for [his] disbelief." Qin v. Ashcroft, 360

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F.3d 302, 306 (1st Cir. 2004) (quoting El Moraghy, 331 F.3d at

205), and review the Immigration Judge's reason on the substantial

evidence standard. Aguilar-Solís, 168 F.3d at 571.

The Immigration Judge discussed the fact that Afful's

asylum application said she entered the country in 1985, when she

actually entered the country in 1989. The Immigration Judge noted

that Afful failed to inform anyone, including her attorneys, that

she had fraudulently entered the country using someone else's

passport. The Immigration Judge also discussed Afful's admission

that she did not give truthful answers to the immigration officer

who interviewed Afful under oath in connection with her asylum

application. Finally, the Immigration Judge found that Afful's

testimony was evasive and contradictory. These findings were amply

supported by the record, which shows that the Immigration Judge had

to ask Afful questions repeatedly before she answered, and that the

Immigration Judge had to admonish Afful on numerous occasions to

tell the truth. For example, the Immigration Judge had to ask

Afful repeatedly if she told her attorneys that she had used

another person's passport to enter the United States before Afful

gave an answer that was both evasive and contradictory:

Q. I said did you [Afful] tell them
[Afful's attorneys] that [you
entered the United States using
another person's passport]?
A. (No audible response).
Q. Ma'am.
A. My Lord.
Q. I'm asking you a question.

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 A. Yes, my Lord. I know.
Q. Well, what do you think we're here
for? Okay. Did you tell them,
your attorney that, or didn't you?
A. (No audible response).
Q. Ma'am.
A. My Lord.
Q. Please answer the question.
A. I know.
Q. I know. You know. I know. But
answer the question. Did you tell
your attorney that? That you used
somebody else's name to come to
the United States and you were
admitted as a visitor?
A. (No audible response).
Q. You have to answer the question.
It's either yes or no. Which is
it?
A. (No audible response).
. . . .
Q. Well, tell the truth. Did you
tell your attorney, who filled out
your asylum application, that you
entered the United States with
this name and a passport and you
came here as a visitor?
A. I didn't tell her. I didn't tell
her I entered the United States
with somebody's [sic]. I said I
entered the United States with
somebody's passport, but I didn't
go into it.

In affirming the Immigration Judge's decision, the BIA

discussed these findings and noted other inconsistencies in Afful's

testimony. These inconsistencies were not, as Afful argues, "minor

discrepancies in dates that are attributable to the applicant's

language problems or typographical errors . . . ." Damaize-Job v.

INS, 787 F.2d 1332, 1337 (9th Cir. 1986). They involved important

and material facts relevant to her application. Furthermore,

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witness demeanor and conflicting testimony are crucial factors in

assessing credibility. See Cordero-Trejo v. INS, 40 F.3d 481, 491

(1st Cir. 1994). The Immigration Judge and BIA supported the

adverse credibility determination with specific findings, and

nothing in the record before us compels a contrary conclusion. See

Aguilar-Solís, 168 F.3d at 571.

B. Future Persecution

Afful does not argue that she faced past persecution in

Ghana, but that she has a well-founded fear of persecution and

there is a reasonable possibility that she will be persecuted if

she returns to Ghana. To establish a well-founded fear of future

persecution, an applicant must prove that the fear is "both genuine

and objectively reasonable." Id. at 572 (citation omitted). There

is substantial evidence that Afful did not meet this burden.

Not only was Afful's testimony evasive and conflicting,

it was insufficient to establish that "a reasonable person in the

asylum applicant's circumstances would fear persecution on account

of a statutorily protected ground." Id. (citations omitted). The

only incidents Afful testified to involved her brothers. One

brother lost his job because of his affiliation with the PFP, and

another was arrested three times and lost his property. Neither

brother was physically harmed. Afful was never arrested or

physically harmed. This evidence does not compel a finding that a

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reasonable person in Afful's circumstances would fear persecution

on account of a statutorily-protected ground.

Because we find substantial evidence to support the

Immigration Judge's and BIA's findings that Afful was not a

credible witness and failed to demonstrate a well-founded fear of

future persecution due to a protected ground, we affirm the denial

of asylum.

Because Afful is unable to satisfy the less stringent

standard for asylum, she is a fortiori unable to satisfy the test

for withholding of deportation. See Albathani v. INS, 318 F.3d

365, 372 (1st Cir. 2003). We therefore affirm the denial of

withholding of deportation.

II. Pretermitting the Application for Suspension of Deportation

Afful contends that it was error to pretermit her

application for suspension of deportation. An application is

pretermitted when disqualified for failure to meet the threshold

eligibility requirement that an alien have resided in the United

States for a sufficient period of time to obtain the discretionary

relief of suspension of deportation. Under the former INA, the

requisite period of residence was seven years, and the period

continued to accrue until the alien applied for suspension of

deportation. 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996). The

passage of the Illegal Immigration Reform and Immigrant

Responsibility Act ("IIRIRA") in 1996 established a "stop-time"

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rule that caps an alien's cumulative period of residence once a

"notice to appear" is issued. IIRIRA § 309(c)(5); 8 U.S.C. § 1229b

(d)(1); see Suassuna v. INS, 342 F.3d 578, 581 (6th Cir. 2003)

("Prior to the enactment of the stop-time rule, aliens would often

delay their deportation proceedings until they accrued sufficient

continuous presence in the United States to qualify for relief.")

(citing H.R. Rep. 104-879 (1997)). IIRIRA also changed the name of

the relief from "suspension of deportation" to "cancellation of

removal." 8 U.S.C. § 1229b(d)(1).

Afful arrived in the United States in October 1989 and

was served with an order to show cause on April 21, 1995. Afful

argues that the stop-time provision in 8 U.S.C. § 1229b(d)(1) was

erroneously applied to her case. As the sole support for this

contention, Afful points to one of several transitional rules

included in the IIRIRA to address the applicability of the

amendments to persons already in proceedings with the INS prior to

April 1, 1997, as she was. Section 309(c)(1), "GENERAL RULE THAT

NEW RULES DO NOT APPLY," provides that:

Subject to the succeeding provisions of this
subsection, in the case of an alien who is in
exclusion or deportation proceedings as of the
title III-A effective date--
(A) the amendments made by this
subtitle shall not apply, and
(B) the proceedings (including judicial
review thereof) shall continue to be conducted
without regard to such amendments.

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IIRIRA § 309(c)(1), Pub. L. No. 104-208, 110 Stat. 3009-627 (1996)

(emphasis added). The general rule is relevantly excepted in this

case by a succeeding provision of the subsection in § 309(c)(5),

which states the "transitional rule with regard to suspension of

deportation":

Paragraphs (1) and (2) of section 240A(d) of
the Immigration and Nationality Act (relating
to continuous residence or physical presence)
shall apply to notices to appear issued
before, on, or after the date of the enactment
of this Act.

IIRIRA, § 309(c)(5), Pub. L. No. 104-208, 110 Stat. 3009 (1996).

This language, then, provides that even if an alien had been served

with a notice to appear prior to April 1, 1997, the new stop-time

rule would apply. While Afful was issued an "order to show cause"

("OSC") instead of a "notice to appear," the availability of a

differing treatment for these terms under § 309(c)(5) was

foreclosed the following year with the passage of the Nicaraguan

Adjustment and Central American Relief Act ("NACARA") which, among

other things, extensively and retroactively amended § 309(c)(5) to

read as follows:

(5) Transitional rules with regard to
suspension of deportation.--

(A) In general.--Subject to
subparagraphs (B) and (C), paragraphs (1) and
(2) of section 240A(d) of the Immigration and
Nationality Act (relating to continuous
residence or physical presence) shall apply to
orders to show cause (including those referred
to in section 242B(a)(1) of the Immigration
and Nationality Act, as in effect before the

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 title III-A effective date), issued before,
on, or after the date of the enactment of this
Act.

NACARA § 203(a)(1), Pub. L. No. 105-100, 111 Stat. 2160 (1997)

(emphasis added). After the passage of NACARA, the BIA issued a

decision construing IIRIRA's transitional rule in § 309(c)(5) as

clarified by the NACARA amendments "to apply the stop-time rule to

all applications for this particular type of relief, whether in the

form of suspension of deportation proceedings or cancellation of

removal." In re Nolasco-Tofino, 22 I. & N. Dec. 632, 637 (BIA

1999).

Since NACARA and In re Nolasco-Tofino, every circuit to

have addressed the question has found that the stop-time rule

applies retroactively to orders to show cause issued prior to the

enactment of the IIRIRA. See Suassuna v. INS, 342 F.3d 578 (6th

Cir. 2003); Ram v. INS, 243 F.3d 510 (9th Cir. 2001); Pinho v. INS,

249 F.3d 183 (3d Cir. 2001); Angel-Ramos v. Reno, 227 F.3d 942 (7th

Cir. 2000); Ayoub v. INS, 222 F.3d 214 (5th Cir. 2000); Afolayan

v. INS, 219 F.3d 784 (8th Cir. 2000); Rivera-Jiménez v. INS, 214

F.3d 1213 (10th Cir. 2000); Tefel v. Reno, 180 F.3d 1286 (11th Cir.

1999). We agree and conclude that the BIA correctly affirmed the

pretermittance of Afful's application for suspension of

deportation.

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 III. Motion to Remand

Afful moved to remand proceedings to the Immigration

Judge in order to present an application for adjustment of status

under § 245(i) of the INA, 8 U.S.C. § 1255(i).2 The basis for the

application would have been the approved visa petition that she

submitted with the motion along with an application to adjust

status and evidence relevant to her employment-based visa. A

precondition to granting her motion is her prima facie eligibility

for the relief sought on remand. See INS v. Abudu, 485 U.S. 94,

104 (1988). We review the BIA's determination as to her prima

facie eligibility for abuse of discretion. See Fesseha, 333 F.3d

at 20.

The BIA found that because the Immigration Judge

determined that Afful entered the United States with a fraudulent

passport and visa and was inadmissible under § 212(a)(6)(C)(i) of

2
The BIA has recognized that, while motions to amend are not
explicitly addressed by applicable statutes and regulations, "such
motions are commonly addressed to the Board." Matter of Coelho, 20
I. & N. Dec. 464, 471 (BIA 1992). BIA practice has taken a
functional approach: where the motion "simply articulates the
remedy requested by an appeal, [the BIA] treat[s] it as part of the
appeal and do[es] not require it to conform to the standards for
consideration of motions." Id. "However, where a motion to remand
is really in the nature of a motion to reopen or a motion to
reconsider, it must comply with the substantive requirements for
such motions." Id. "In reviewing the Board's decision to construe
[Afful]'s motion to remand as a motion to reopen, we accord the
Board considerable deference in interpreting its own regulations."
Krougliak v. INS, 289 F.3d 457, 460 (7th Cir. 2002). Accordingly,
we review Afful's motion to remand as a motion to reopen and under
the same standards. See, e.g., id.; Al Najjar v. Ashcroft, 257
F.3d 1262, 1301-02 (11th Cir. 2001) (citations omitted).

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the INA, 8 U.S.C. § 1182(a)(6)(C)(i), Afful could only obtain

relief under § 245(i) if she obtained a waiver of inadmissibility.

8 U.S.C. § 1182 (a)(9)(B)(v). Such a waiver, however, only issues

to someone

who is the spouse or son or daughter of a
United States citizen or of an alien lawfully
admitted for permanent residence, if it is
established to the satisfaction of the
Attorney General that the refusal of admission
to such immigrant alien would result in
extreme hardship to the citizen or lawfully
resident spouse or parent of such alien.

Id. The BIA correctly determined that Afful did not meet criteria

essential to her prima facie eligibility for the relief requested.

IV. Conclusion

For the foregoing reasons, the order of the BIA is

affirmed.

Affirmed.

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