Toure 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Not For Publication in West's Federal Reporter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. 03-1706

NANA TOURE,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,
UNITED STATES OF AMERICA,

Respondent.

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

Before

Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.

Mark B. Laroche, on brief, for petitioner.
Nancy E. Friedman, Office of Immigration Litigation, Civil
Division, United States Department of Justice, with whom Peter D.
Keisler, Assistant Attorney General, and Carl H. McIntyre, Jr.,
Senior Litigation Counsel, were on brief, for respondent.

February 3, 2005
 Per Curiam. Petitioner Nana Toure ("Toure") appeals the

Board of Immigration Appeals's ("BIA") summary affirmance of an

Immigration Judge's denial of her applications for asylum,

withholding of removal, and relief under the Convention Against

Torture. We affirm.

I. Background

Toure is a native and citizen of Guinea who entered the

United States at New York, New York, on January 27, 1996 with a

visitor for business visa that authorized her to remain for one

month. She overstayed, and on June 30, 1999, the Immigration and

Naturalization Service ("INS")1 issued a Notice to Appear charging

Toure with removability under § 237(a)(1)(B) of the Immigration and

Nationality Act ("INA"), 8 U.S.C. § 1227 (a)(1)(B), for remaining

in the United States for a time longer than permitted.

At a hearing before an Immigration Judge on January 12,

2000, Toure admitted the factual allegations against her, conceded

removability, and requested asylum, withholding of removal, and

relief under the Convention Against Torture ("CAT").

Toure presented testimony in support of her application

at hearings held on May 2, 2000 and February 21, 2001. Toure

testified that before coming to the United States, she lived in

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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Conkary, Guinea with her father, mother, and four siblings.

Toure's father was arrested and imprisoned for five years in 1979

for speaking out against the Guinean government and organizing a

meeting against the government. While in prison, guards beat him

and subjected him to electrical shocks. During this time, soldiers

frequently came to Toure's home. Toure testified that the soldiers

tied and beat Toure and her family, yelled at them, and that on one

occasion a soldier raped Toure's cousin. Toure testified that she

has a scar on her left cheek from one of the beatings.

Toure's father was released from prison in 1984, and

continued to speak out against the government. In 1991, he was

arrested and imprisoned for one year for holding meetings without

the permission of the government. Toure left Guinea with an aunt

in 1994 and went to Ivory Coast for two months, but returned to

Guinea at her father's request. Toure testified that her father

had attempted to leave Guinea but was prevented from doing so by

the government, and that he wanted Toure to return to Guinea in

order to keep the family together.

Toure also testified that she and her father were members

of a political group called the Reunion for the People of Guinea

("RPG"). The RPG opposed the government and sought to bring

democracy to Guinea. Toure's father was the local representative

for the group. Toure testified that the group was founded "more

than ten years ago," but that in the first year of its existence,

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the group did not have a name. Toure also testified that she first

heard the name "RPG" six or seven years previously, during a

meeting at her home. Toure testified that there were 100 to 150

people at this meeting. When asked how that many people were able

to fit into her home, Toure testified that the meeting was not in

her home but in a permanent meeting place.

Toure never mentioned the RPG in her asylum application,

and gave inconsistent testimony when trying to explain this

omission at her hearing. Toure first testified that she did

mention the RPG in her application, but eventually admitted that

she did not mention the RPG in her application. Toure also

admitted that, despite her alleged membership in the RPG, she never

mentioned her own political affiliation in her asylum application.

Upon further questioning, Toure said that she did not mention the

RPG in her application because it did not have a name at that time,

even though she had already testified that the RPG received its

name six or seven years prior to her hearing. Toure finally

testified that the RPG had a name when she filled out her

application, but said she did not mention the name in her

application because she had recently been released from prison and

had "some kind of problem."

Toure testified that after she came to the United States,

she learned from her uncle that her father had been shot and killed

by soldiers in the streets of Conkary on February 2, 1996.

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However, the death certificate that Toure provided to the

Immigration Judge indicated that Toure's father died in the

hospital as the result of an accident. Toure provided no

explanation for this discrepancy.

Toure also testified that if she returns to Guinea, she

and her daughter will be forced to undergo female genital

mutilation ("FGM"). Toure testified that her sister in Guinea has

already undergone FGM. Toure's father was opposed to FGM, but

since his death, Toure's aunt (who supports FGM) has taken charge

of the family. Toure testified that FGM is customary in Guinea.

Toure also submitted documentary evidence detailing FGM practices

in Guinea.

On August 20, 1998, Toure married Louis DeStephen

("DeStephen"), also a native and citizen of Guinea, in a proxy

ceremony performed in Guinea while they were in Fall River,

Massachusetts.2 Toure knew DeStephen when they were both young and

in Guinea, but they did not begin a serious relationship until they

met in the United States. They have a daughter who was born on

August 23, 1999 in Pawtucket, Rhode Island.

On May 9, 1999, Toure was arrested and charged with bank

fraud. She pled guilty and was sentenced to two years' probation.

2
Toure testified that she is a believer in Islam, and that in her
religion, a couple can get married in their home country through
proxies. Toure and her husband decided to have this type of
ceremony because they were unfamiliar with the Islamic community in
Fall River.

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DeStephen was also arrested and eventually convicted. He entered

removal proceedings on June 18, 1999, when the INS served him with

a Notice to Appear. On May 1, 2000, Toure testified at DeStephen's

hearing. The Immigration Judge in DeStephen's hearing found that

Toure had given false testimony and was therefore not a credible

witness.

In an oral decision on June 7, 2001, the Immigration

Judge in Toure's hearing denied Toure's applications for asylum and

withholding of removal, finding that she was not a credible witness

and that she failed to prove past persecution or a well-founded

fear of future persecution. In making the adverse credibility

determination, the Immigration Judge relied on three factors: (1)

Toure's inconsistent testimony regarding the RPG, (2) the

discrepancy between Toure's account of her father's death and her

father's death certificate, and (3) Toure's prior false testimony

at DeStephen's hearing. The Immigration Judge also denied Toure's

request for relief under the Convention Against Torture, finding

that she had presented no evidence that she would be tortured in

the future by the Guinean government or with the consent or

acquiescence of a government official. Toure appealed to the BIA,

which summarily affirmed the Immigration Judge's decision on

April 18, 2003.3 This appeal followed.

3
Because the BIA did not render its own opinion, but instead
adopted the opinion of the Immigration Judge, we review the
decision of the Immigration Judge. See Settenda v. Ashcroft, 377

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 II. Analysis

A. Asylum

Toure bears the burden of demonstrating her eligibility

for asylum. 8 C.F.R. § 208.13(a). Toure may meet that burden by

demonstrating past persecution or a well-founded fear of future

persecution based on her "race, religion, nationality, membership

in a particular social group, or political opinion." Id.

§ 208.13(b)(1). "The testimony of the applicant, if credible, may

be sufficient to sustain the burden of proof without

corroboration." Id. § 208.13(a). 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). To show a well-founded fear of future

persecution, "the applicant's fear must be both genuine and

objectively reasonable." Aguilar-Solís v. INS, 168 F.3d 565, 572

(1st Cir. 1999). An applicant who has proven past persecution is

"presumed to have a well-founded fear of future persecution unless

the agency can prove otherwise." Fesseha, 333 F.3d at 18.

We will uphold the decisions of the Immigration Judge and

BIA if they are "supported by reasonable, substantial, and

probative evidence on the record considered as a whole." Guzmán v.

INS, 327 F.3d 11, 15 (1st Cir. 2003)(quoting INS v. Elías-Zacarías,

502 U.S. 478, 481 (1992)). Under this standard, "[t]o reverse the

F.3d 89, 93 (1st Cir. 2004).

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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).

1. Credibility

"[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." Aguilar-Solís, 168 F.3d at 571. In this

case, the Immigration Judge found that Toure was not a credible

witness. The Immigration Judge supported his credibility

determination with specific findings that "amply justified the IJ's

conclusion that the petitioner's testimony lacked credibility."

Id.

Toure first argues that the Immigration Judge erred by

giving substantial weight to the findings of the Immigration Judge

in DeStephen's case about Toure's credibility as a witness. That

Immigration Judge found that Toure had presented false testimony in

DeStephen's case. Toure argues that her Immigration Judge should

have made a credibility determination based only on Toure's

demeanor and testimony in her own proceeding. Further, Toure

argues that her testimony in DeStephen's case was irrelevant to her

own case. We disagree with both arguments.

Toure's Immigration Judge made several specific findings

besides the finding that Toure gave false testimony in DeStephen's

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asylum hearing. Toure's Immigration Judge discussed her

inconsistent testimony regarding the RPG and her father's death.

These inconsistencies were not minor discrepancies, but went to the

heart of Toure's credibility. See Bojorques-Villanueva v. INS, 194

F.3d 14, 17 (1st Cir. 1999)(affirming an adverse credibility

determination where multiple inconsistencies in the applicant's

story were not minor discrepancies but "went to the central facts

of the triggering event.") At most, Toure's Immigration Judge set

Toure's prior testimony "against the backdrop of the whole record

and considered [it] as one factor in his credibility

determination." See Balogun v. Ashcroft, 374 F.3d 492, 504 (7th

Cir. 2004).

Further, Toure's testimony, given under oath at

DeStephen's hearing, was relevant to Toure's case. We have stated

that an applicant's "admittedly fraudulent original application,

coupled with her rehearsed (and equally false) testimony at her

initial asylum interview, fairly illustrated her propensity to

dissemble under oath." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st

Cir. 2004). While Toure did not submit an admittedly fraudulent

asylum application, her false testimony under oath in her husband's

hearing "fairly illustrated her propensity to dissemble under

oath." Id.; see also Balogun, 374 F.3d at 503-04 (7th Cir. 2004)

(finding misrepresentations made in an airport interview relevant

to an asylum applicant's credibility, even though not directly

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related to the basis of the applicant's fear of persecution,

because they showed "a propensity to dissemble and to distort the

truth when the need arises"). Since Toure's credibility was

crucial to her case, we find that evidence of her false testimony,

given under oath in connection with DeStephen's case, was relevant

to Toure's credibility in her own case.

When Toure was asked to explain her prior testimony in

her husband's case during cross examination in her own case, her

answers were inconsistent and non-responsive. Toure first stated

that she did not know anything about her husband's case. Upon

further questioning, Toure stated:

"If I understand, I am not here for you to ask
me question about my husband, I am here for
you to ask me question about my case. I do
not know anything about what you talking about
now. If you want, you can ask me questions
about my case and I am going to answer, but,
because I am not here to answer any question
about my husband."

This inconsistent and non-responsive testimony during her own

hearing raised further questions about Toure's general credibility.

We find that Toure's prior testimony was relevant to her

credibility and that Toure's Immigration Judge supported the

credibility determination with specific findings.

Toure's second argument is that she was deprived of due

process because she was not represented by counsel when she

testified at her husband's asylum hearing, since that testimony was

later used in her own hearing to support an adverse credibility

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finding. We review this claim de novo. See Aguilar-Solís, 168

F.3d at 568. While the Federal Rules of Evidence do not apply in

INS proceedings, "the less rigid constraints of due process impose

outer limits based upon considerations of fairness and

reliability." Yongo v. INS, 355 F.3d 27, 30 (1st Cir. 2004).

After reviewing the record, we find no merit to Toure's

due process argument. In the asylum context, due process gives

aliens the right to be represented by counsel, at their own

expense, in their removal proceedings. See 8 U.S.C. § 1362;

Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). In the

instant case, Toure was represented by counsel at her own asylum

hearing. She was given a full and fair hearing and had an

opportunity to present her entire case, including an opportunity to

testify and present evidence to combat the evidence of her prior

false testimony. We are unaware of any case or statutory law that

supports Toure's argument that due process entitled her to

representation by counsel when she testified at DeStephen's

hearing. We therefore find that Toure was not deprived of due

process.

In sum, Toure's testimony at DeStephen's hearing

illustrated a propensity to testify falsely under oath. Toure's

explanations of that testimony at her own hearing only revealed

further inconsistencies and a demeanor that harmed her credibility.

In addition, her inconsistent and contradictory testimony regarding

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the RPG and her father's death was itself substantial enough to

support an adverse credibility finding.

2. Past Persecution

Toure argues that her testimony regarding her father's

persecution creates a presumption of her own well-founded fear of

persecution. In order to trigger a presumption of a well-founded

fear of future persecution, an applicant must prove that she was

persecuted because of her race, religion, nationality, membership

in a particular social group, or political opinion. 8 C.F.R.

§ 208.13(b)(1). Even putting aside Toure's lack of credibility,

Toure has not attempted to demonstrate how the alleged persecution

of her father constituted past persecution of her on the basis of

a protected ground. We find that substantial evidence supports the

Immigration Judge's finding regarding past persecution, and that

Toure is not entitled to a presumption of a well-founded fear of

future persecution.

3. Future Persecution

Toure argues that, even if she is not entitled to a

presumption of a well-founded fear of future persecution, her

testimony regarding her father's persecution and her fear of FGM,

along with her documentary evidence concerning FGM in Guinea, was

sufficient to establish a well-founded fear.4 To establish a well-

4
We note that FGM may constitute persecution under some
circumstances. See In re Kasinga, 21 I. & N. Dec. 357, 358 (BIA
1996)(stating that FGM may constitute persecution on account of

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founded fear of future persecution, an asylum applicant must

satisfy a subjective and objective prong. Both prongs depend on

the applicant's credibility. To satisfy the subjective prong, the

applicant must show her fear is genuine. Fesseha, 333 F.3d at 19.

To satisfy the objective prong, the applicant "must show by

credible evidence that her fear of future persecution is

reasonable." Laurent, 359 F.3d at 65. Because Toure was not

credible, the Immigration Judge found that she did not satisfy

either prong. The evidence before us does not compel a different

result, and we therefore find that Toure has failed to establish a

well-founded fear of future persecution.

B. Withholding of Removal

Because Toure is unable to satisfy the less stringent

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

for withholding of deportation. Albathani v. INS, 318 F.3d 365,

374 (1st Cir. 2003).

C. Convention Against Torture

Toure's final argument is that she is entitled to relief

under the CAT because she will be tortured if returned to Guinea.

She bases this argument on her testimony and on country condition

reports regarding FGM in Guinea. To be entitled to relief under

the CAT, Toure must demonstrate that it is more likely than not

that she will be tortured if removed to Guinea. 8 C.F.R. § 208.16

membership in a particular social group).

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(c)(2). The regulations implementing the CAT define torture as

"severe pain or suffering," inflicted for one of several listed

purposes "by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity." Id. § 208.18(a)(1). The Immigration Judge

found that Toure had failed to present any evidence that she would

be tortured by the Guinean government or any agent of the Guinean

government. Toure, referring to an Amnesty International report on

FGM, argues that the Guinean government refuses to outlaw FGM and

therefore acquiesces or consents to the practice. However, this

Amnesty International report indicates that FGM is illegal in

Guinea, that the Guinean Supreme Court is working to propose a

constitutional amendment prohibiting FGM, and that several high-

level government officials have spoken out against FGM. This

evidence belies Toure's claim of government acquiescence.

Consequently, we find that substantial evidence supports the

Immigration Judge's findings as to the CAT.

III. Conclusion

For the reasons stated above, the BIA's order is

affirmed.

Affirmed.

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