Olujoke v. Gonzáles

United States Court of Appeals
For the First Circuit

No. 04-1252

STELLA OLUJOKE, A/K/A STELLA OLUJOKE FALAE,
A/K/A STELLA OLUJOKE AKINKUOWO,
A/K/A JOKE AKINKUOWO,
A/K/A ELIZABETH ABOLANLE ADEYEMI,

Petitioner,

v.

ALBERTO R. GONZÁLES,* ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.

Ronald W. Thompson, Jr. on brief for petitioner.
Peter Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, and Jennifer Levings,
Attorney, Office of Immigration Litigation, on brief for
respondents.

June 9, 2005

__________
*Alberto R. Gonzáles was sworn in as United States Attorney General
on February 3, 2005. We have therefore substituted Attorney
General Gonzáles for his predecessor in office as respondent in
this matter. See Fed. R. App. P. 43(c)(2).
 SELYA, Circuit Judge. Petitioner Stella Olujoke Falae,

a Nigerian national, seeks review of a final order of the Board of

Immigration Appeals (BIA) denying her application for asylum,

withholding of removal, and protection under the Convention Against

Torture (CAT). The petitioner argues that the BIA erred in

summarily upholding an immigration judge's determination that she

was not a credible witness and that, therefore, she had failed to

establish eligibility for relief. In the alternative, the

petitioner argues that the BIA should have allowed her motion to

remand based upon new evidence. After careful review, we conclude

that the decision below is supported by substantial evidence and

that the BIA did not misuse its discretion in rejecting the motion

to remand. Consequently, we deny the petition for review.

I. BACKGROUND

On or about December 13, 1993, the petitioner was

admitted as a nonimmigrant visitor to the United States through the

use of a Nigerian passport and visa obtained under a false name.

She was authorized to remain in the United States until January 12,

1994. She overstayed that authorization and, in May of 1994, she

filed an application for asylum in which she claimed, inter alia,

that she had been persecuted in her homeland due to her decision to

convert from Islam to Christianity.

The petitioner's fiancé, Michael Falae, followed her from

Nigeria to the United States. After having encountered some bumps

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in the road — Michael wed, and then divorced, another woman — the

couple married on July 19, 1997. For a time, immigration

proceedings involving the petitioner and Michael Falae were

consolidated. Eventually, however, the two went their separate

ways and the immigration proceedings were uncoupled. We deal here

exclusively with Stella Olujoke's petition. We resolved Falae's

case in a companion opinion filed earlier today. See Falae v.

Gonzáles, ___ F.3d ___ (1st Cir. 2005) [No. 04-1288].

On May 18, 1999, Stella and Michael were jointly

interviewed by an asylum officer, who found them lacking in

credibility and referred the matter of their status to the

immigration court. When the Immigration and Naturalization Service

(INS) instituted removal proceedings,1 the petitioner conceded

removability and cross-applied for asylum, withholding of removal,

and protection under the CAT. A series of hearings before an

immigration judge (IJ) followed. These hearings continued through

June 18, 2002. We succinctly summarize the petitioner's testimony.

The petitioner stated that she was born in 1965 to a

devout Muslim family. She grew up in Ondo Town, Nigeria, and

practiced the Islamic religion until age fifteen. She was then

1
The Homeland Security Act of 2002, Pub. L. 107-296, § 471,
116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)),
eliminated the INS and transferred its duties to the Department of
Homeland Security. See Lattab v. Ashcroft, 384 F.3d 8, 13 n.2 (1st
Cir. 2004). For simplicity's sake, we continue to refer to the INS
throughout this opinion.

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introduced to Christianity and began to participate in local church

activities. She eventually decided to abandon Islam entirely and

became a member of the Celestial Church of Christ. She fell in

love with Michael Falae, a Christian, and planned to marry him.

The petitioner's parents did not accept the news

graciously. They were outraged at the thought of their daughter

marrying out of the faith. When she brought Falae home, family

members "beat him up." She too endured her parents' wrath; her

father punched her in the face, bloodying her nose.

At that point, her family began a pattern of abuse

directed against her. This abuse ranged from the bizarre (locking

her inside the local mosque) to the mundane (refusing to pay her

tuition at the local college) to the physically dangerous (denying

her food).

The abuse was not carried out only by family members. On

one occasion, the petitioner was waiting for a bus. A passerby

offered her a lift. Once she was inside the car, he brandished a

knife and told her that he had been sent by her parents to kill

her. Another incident occurred on December 25, 1992. While the

petitioner was driving home from services with fellow churchgoers,

eight Muslim men waylaid the car, dragged the occupants onto the

street, doused the vehicle with gasoline, and set it on fire. They

then chased the petitioner and stabbed her in the back with a

broken bottle, causing severe injuries. A third incident occurred

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on September 16, 1993; a Muslim man struck the petitioner on the

head with "iron" as she was en route to a religious ceremony. The

resulting injuries required "stitches all over" and hospitalization

for seventeen days. She fled the country to escape from further

violence.

The IJ was unmoved by this horrific tale. She found the

petitioner wholly lacking in credibility, so much so that she

concluded that the petitioner had never been a Muslim, that she had

never been harassed, that she did not flee to escape abuse, and

that she had no reason to fear persecution should she return to

Nigeria. The IJ bolstered her conclusions with specific findings.

We summarize the most pertinent findings below:

1. The petitioner had entered the country
using a false passport and visa, yet offered
no explanation as to why she could not have
obtained genuine travel documents in her own
name.

2. The petitioner presented a birth
certificate at the hearings, which was
reliably determined by forensic experts to be
fraudulent.

3. There were numerous internal
inconsistencies in the petitioner's testimony.
For example, although the petitioner claimed
to have been raised in a devout Muslim home
and to have practiced the Islamic faith until
she was fifteen years of age, she could not
answer the most basic questions about that
religion. Moreover, she could not read any
Arabic, recite any Islamic prayers, name any
part of the Koran, or identify any Muslim
holiday (other than Ramadan).

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 4. The petitioner garbled the facts with
respect to the history of her relationship
with Michael Falae. For example, she
testified that the two had met in 1990, yet
she had stated in the asylum interview that
they had met in either 1980 or 1985.

5. The petitioner presented conflicting
accounts of the alleged incidents of
persecution. In her written asylum
application, she offered one version of her
alleged encounter with the man sent by her
parents, stating that he knocked her
unconscious and took her to a nearby village.
In her asylum interview, she neglected to
mention any details regarding this incident.
In her testimony before the IJ, she made no
claim that she had been knocked unconscious,
but said that the man brandished a knife and
that she had lost control of her bowels and
soiled herself (details glaringly absent from
her prior presentations). She was similarly
inconsistent with regard to the alleged attack
of September 16, 1993. In her asylum
application, she claimed that she had been
beaten by a gang of Muslim youths and had been
rescued by friends. In her testimony before
the IJ, she related that a single individual
had struck her with "iron" and that she had
been admitted to the hospital for head trauma.
This alleged hospital stay was not mentioned
in the petitioner's asylum application and the
petitioner did not produce the hospital
records.2

6. The combined demeanor of the petitioner
and Michael Falae (whom the petitioner had
called as a witness) led the IJ to conclude
that both her testimony and his was evasive
and untruthful. The IJ noted, among other

2
She did offer a letter as "proof" that the hospitalization
occurred, but the IJ had no way to authenticate the letter and
rejected the proffer. The IJ noted that, in any event, the letter
conflicted with the petitioner's testimony, since the letter
related only that she was treated with injections and tablets,
making no mention of stitches.

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 things, that Falae attempted several times to
"coach" the petitioner and vice versa.
Moreover, the two repeatedly looked to each
other for answers as they testified.

The petitioner's case rested squarely on her own

testimony. Because that testimony was not credible, the IJ

concluded that she had not carried her burden of proving either

past persecution or a well-founded fear of future persecution.

Similarly, she had not proved that it was more likely than not that

she would undergo torture if she were removed to Nigeria.

Accordingly, the IJ denied the application for asylum, withholding

of removal, and protection under the CAT.

The petitioner appealed this decision to the BIA. While

her appeal was pending, she moved to remand the case to the IJ

based upon new evidence: a psychological evaluation purporting to

explain the petitioner's evasive demeanor and inconsistent

testimony during the hearings. On January 29, 2004, the BIA

summarily affirmed the IJ's decision and denied the motion to

remand. As to the latter, the BIA found that the report was not

"new evidence" inasmuch as the underlying information on which it

rested was available at the time of the hearings and could have

been proffered to the IJ. As an alternate ground, the BIA found

the report immaterial, as the IJ's adverse credibility finding was

not based upon demeanor alone. This timely petition for review

followed.

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II. DISCUSSION

We treat sequentially the petitioner's claims that the

BIA erred (i) in summarily affirming the denial of her asylum,

withholding of removal, and CAT claims, and (ii) in refusing to

reopen the proceedings below.

A. The Asylum Claim.

We turn first to the asylum claim. In order to establish

an entitlement to asylum, an alien bears the burden of showing that

she is a refugee within the meaning of the immigration laws. See

Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005);

see also 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). A refugee is

a person who cannot or will not return to her home country "because

of persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see also

Rodriguez-Ramirez, 398 F.3d at 124.

We review findings of fact in immigration cases,

including credibility determinations, under the substantial

evidence standard. Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.

2005). Where, as here, the BIA summarily affirms an IJ's asylum

determination, we review directly the IJ's decision as if it were

the decision of the BIA. Jupiter v. Ashcroft, 396 F.3d 487, 490

(1st Cir. 2005). We review agency determinations of fact,

including credibility assessments, under a highly deferential

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standard. We must affirm the findings upon which the decision

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

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

Elias-Zacarias, 502 U.S. 478, 481 (1992). Stated another way, the

findings must stand unless the record evidence is such as to compel

a reasonable factfinder to make a contrary determination. See Da

Silva, 394 F.3d at 4-5; see also 8 U.S.C. § 1252(b)(4)(B).

The petitioner's claim for asylum revolves around her

asseveration that she was persecuted on the basis of her religious

affiliation.3 The IJ found her testimony to be incredible and

supported this finding with several subsidiary findings. These

included book-and-verse references to significant inconsistencies

in the petitioner's testimony, her persistent resort to fraudulent

documentation, and her demeanor during the hearings. We have

explained before — and today reaffirm — that when "the judicial

officer who saw and heard [a] witness makes an adverse credibility

determination and supports that determination with specific

findings, an appellate court should treat that determination with

3
We note in passing that the petitioner's account, even if
credited, likely would have been legally insufficient. In order to
ground an asylum application, persecution ordinarily must be
practiced or at least condoned by the government. See Da Silva,
394 F.3d at 7; Ananeh-Firempong v. INS, 766 F.2d 621, 622-23 (1st
Cir. 1985). The record in this case does not make that connection.

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great respect." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.

2004). This is such a case.4

That effectively ends this aspect of the matter. When a

petitioner's case depends on the veracity of her own testimony, a

fully supported adverse credibility determination, without more,

can sustain a denial of asylum. See Forgue v. U.S. Atty. Gen., 401

F.3d 1282, 1287 (11th Cir. 2005); see also Dia v. Ashcroft, 353

F.3d 228, 247 (3d Cir. 2003) (en banc) ("An alien's credibility, by

itself, may satisfy his burden, or doom his claim.").

Here, the IJ's specific findings strongly corroborate her

global finding that the petitioner's testimony lacked credibility.

These included the petitioner's use of false documentation to enter

the country and her presentation of a bogus birth certificate to

the court. This type of fraudulent behavior, if not satisfactorily

explained,5 may reflect directly and adversely on a petitioner's

4
Section 101(a)(3) of Title I of the REAL ID Act of 2005, Pub.
L. No. 109-13, § 101(a)(3), 119 Stat. 231, 303 (2005) (to be
codified at 8 U.S.C. § 1158(b)(1)(B)), contains new standards
referable to credibility determinations in cases involving
"applications for asylum, withholding, or other relief from
removal." Id. § 101(h)(2), 119 Stat. at 305. These standards are
only applicable, however, to applications "made on or after" May
11, 2005 (the date of enactment). See id. Since the petitioner's
application was made long prior to that date, the new standards
have no bearing here.
5
As the IJ noted, "there may be a reason, fully consistent
with the claim of asylum, that will cause a person to possess false
documents, such as the creation and use of a false document to
escape persecution by facilitating travel." Here, however, the
petitioner put forth no evidence indicating that she had attempted
to apply for an authentic passport, that one had been denied, or

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overall credibility. See United States v. Williams, 986 F.2d 86,

89 (4th Cir. 1993); In re O-D-, 21 I. & N. Dec. 1079, 1083 (BIA

1998). So too the inconsistencies in the petitioner's testimony,

which went to the fundamental elements of her persecution claim.

These inconsistencies, in and of themselves, offered a solid

foundation for the IJ's determination. See Toure v. Ashcroft, 400

F.3d 44, 47-48 (1st Cir. 2005); Bojorques-Villanueva v. INS, 194

F.3d 14, 17 (1st Cir. 1999).

To say more on this subject would be to paint the lily.

We hold, without serious question, that the IJ's decision that the

petitioner failed to show either past persecution or a well-founded

fear of future persecution is supported by substantial evidence.

B. The Withholding of Removal and CAT Claims.

The petitioner's remaining two substantive claims can be

swiftly dispatched. A claim for withholding of removal "places a

more stringent burden of proof on an alien than does a counterpart

claim for asylum." Rodriguez-Ramirez, 398 F.3d at 123 (citing

Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004)).

Consequently, the denial of the petitioner's asylum claim perforce

serves to defeat her counterpart claim for withholding of removal.

The petitioner's attempt to obtain judicial review of the

denial of her claim for protection under the CAT is equally

that she feared that her persecutors would attempt to stop her if
she traveled under her own name.

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unavailing. The petitioner failed to make any developed

argumentation in support of that claim before the BIA. Thus, the

doctrine of exhaustion of administrative remedies bans any attempt

on her part to resurrect the issue here. See Makhoul, 387 F.3d at

80 (holding that the court of appeals is without jurisdiction to

consider points not squarely raised before the BIA); Alvarez-Flores

v. INS, 909 F.2d 1, 8 (1st Cir. 1990) (same).

C. The Motion to Remand.

This leaves the BIA's denial of the motion to remand.

The petitioner requested that relief based on the contents of a

psychological report proffered to explain the inconsistencies in

her testimony and her demeanor while testifying. The report,

authored by Dr. Ronald A. Cohen (a neuropsychologist), limned the

results of a series of cognitive tests administered on May 13,

2003. Dr. Cohen's diagnosis was that the petitioner suffered from

impaired memory and diminished cognitive ability. He noted,

however, that it was at least possible that the petitioner had

exaggerated her symptoms during the testing.

The BIA appropriately treated this motion as a motion to

reopen. See Falae, ___ F.3d at ___ [slip op. at 7] (citing In re

Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992)). Given concerns about

finality and expeditious processing, motions to reopen are

generally disfavored. INS v. Abudu, 485 U.S. 94, 107 (1988);

Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir. 2003). Broadly

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stated, the movant must make a showing of a "prima facie case for

the underlying substantive relief sought" and must identify

"previously unavailable, material evidence." Mabikas v. INS, 358

F.3d 145, 148 (1st Cir. 2004) (citation and internal quotation

marks omitted); see 8 C.F.R. § 1003.2(c)(1). Even then, the movant

must persuade the BIA to exercise its discretion affirmatively.

Jupiter, 396 F.3d at 490; Mabikas, 358 F.3d at 148. In the last

analysis, then, the granting or denial of such a motion is

discretionary on the part of the BIA. See INS v. Doherty, 502 U.S.

314, 323 (1992).

Viewed against this background, we decline to disturb the

BIA's ruling for three reasons. First, the BIA's determination

that the information underlying the report was not previously

unavailable is well-supported. The report recounts that the

petitioner's alleged symptomotology began to manifest itself long

in advance of the hearings. The testing could have been performed

during the several years that elapsed between the docketing of the

petitioner's case and the hearings at which she testified. The

fact that the petitioner did not deem those symptoms important

enough either to present them to the IJ or to secure a professional

evaluation of them in a timely manner does not make the information

about the symptoms "previously unavailable." See, e.g., Gebremaria

v. Ashcroft, 378 F.3d 734, 739 (8th Cir. 2004).

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 This ground is dispositive, so we allude to the other two

reasons in shorthand form. The second reason why the BIA's ruling

is sustainable relates to the inconclusive nature of the report,

which left open the possibility that the petitioner was

exaggerating her symptoms during the testing. The final reason is

that the IJ's adverse credibility determination rested on much more

than the petitioner's testimonial demeanor (and, therefore, the

proffer was not material).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we conclude that the BIA's denial of merits relief is supported by

substantial evidence in the record and that the BIA acted well

within the realm of its discretion in rejecting the petitioner's

motion to remand.

The petition for review is denied.

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