United States Court of Appeals
For the First Circuit
Nos. 07-1667, 07-2439
AKOFA AYAWA BAKUAYA,
Petitioner,
v.
MICHAEL MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Harvey Kaplan, Ilana Etkin Greenstein, Jeremiah Friedman,
Maureen O'Sullivan and Kaplan, O'Sullivan & Friedman, LLP on brief
for petitioner.
Joseph A. O'Connell, Jamie Dowd, Office of Immigration
Litigation, Civil Division, Department of Justice, Jeffrey S.
Bucholtz, Acting Assistant Attorney General, Civil Division, and
Michelle Latour, Assistant Director, on consolidated brief for
respondent.
July 14, 2008
Per Curiam. Petitioner, Akofa Ayawa Bakuaya, a native of
Togo, arrived in the United States in 1989 on a student visa. In
1993, she filed an asylum application--later supplemented by an
amended application filed in 1999--claiming that her father, uncle
and brother had been killed by Togolese officials on account of
their tribal affiliation (membership in the EWE tribe) and
political activities (membership in the Union of Forces for Change
("UFC") party); that her mother had been detained and interrogated
on one occasion and arrested and tortured on another; and that
various of her family members were forced to flee Togo and take
refuge in neighboring Ghana. Two other brothers also fled Togo,
eventually obtaining asylum in the United States and England.
After repeated delays, a hearing was held before an
Immigration Judge ("IJ") in Boston on January 21, 2000. During the
hearing, confronted with an inconsistency in her asylum materials
and in the face of the IJ's skepticism, Bakuaya recanted: she
admitted that her brother had not been killed, and her mother had
not been arrested and tortured; in fact her mother was in the
United States in July 1994, assisting Bakuaya with the care of her
then-infant daughter. Bakuaya's mother had since voluntarily
returned to Togo, where two of Bakuaya's other siblings continued
to live. However, Bakuaya maintained that her father and uncle
were killed in 1974 because of their political activities, that her
family had been forced to flee to Ghana for brief periods of time,
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and that her husband and two of her brothers--all of whom had fled
Togo--were politically active and that she would be targeted upon
her return because of her association with them.
In an oral opinion, the IJ noted that Bakuaya had
repeatedly lied to immigration officials. Her first immigration
lawyer had helped concoct the false story (and had since been
disbarred and convicted on charges of immigration fraud), but while
Bakuaya had replaced her attorney, she felt she could not abandon
her false claims because her brother had adopted the false story in
his own successful asylum application.
Despite misgivings about rewarding fraudulent
applications, the IJ granted Bakuaya's asylum request. The IJ
found that the human rights conditions in Togo were "atrocious,"
and that Bakuaya had established that certain members of her family
had been targeted for their political and tribal affiliations, and
that if she returned to Togo she might be targeted as well due to
her family connections and her long residence in the United States.
On appeal, the Board of Immigration Appeals ("BIA")
reversed. It held that Bakuaya failed to satisfy her burden of
proving 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. §§ 1158(b)(1)(A), 1101(a)(42)(A)
(2000), both because her testimony--on which her claim largely
rested--lacked credibility, and because, even if believed, her
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testimony did not establish a well-founded fear of future
persecution: she was never personally targeted in Togo, had never
been politically active, and several of her immediate family
members continued to live in Togo unharmed.
Bakuaya petitioned for review of the BIA decision in this
court. In the interim, the BIA remanded the case to the IJ to rule
on Bakuaya's request for voluntary departure, and Bakuaya filed a
motion to reopen her asylum case with the BIA based on changed
country conditions and new information concerning another brother,
who she claims was attacked by Togolese soldiers on account of his
tribal membership. 8 C.F.R. § 1003.2(c). Bakuaya's request for
voluntary departure was denied by the IJ, and the BIA denied her
motion to reopen. Her petitions for review of the BIA's denial of
her asylum application and her motion to reopen were consolidated
in this court.
We review the BIA's denial of Bakuaya's asylum
application under the substantial evidence standard, deferring to
its findings "unless any reasonable adjudicator would be compelled
to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); Fesseha v.
Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003) (internal quotation marks
and citations omitted). Bakuaya urges us to defer to the IJ's
findings, particularly with respect to its ultimate determination
that she was credible, but where the BIA has not adopted the IJ's
findings our review is of the BIA's decision, and our deference is
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owed to it. Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir. 2004);
Martinez v. INS, 970 F.2d 973, 974 (1st Cir. 1992).
The parties focus much of their briefing on the BIA's
credibility finding, debating whether the admitted falsehoods in
Bakuaya's applications and testimony necessarily taint the entirety
of her testimony. Credibility determinations are largely for the
fact finder, and in any event even crediting arguendo Bakuaya's un-
recanted testimony at the hearing, the BIA's denial of her asylum
application would survive deferential review based on its
alternative ground, namely, that those facts did not show a well
founded fear of persecution.
Thus, the evidence showed that Bakuaya had never herself
been targeted in Togo. She was never a member of the UFC or
otherwise politically active. The sole basis for her asserted fear
of persecution in Togo was her familial and tribal connections.
But as the BIA noted, her mother, brother, and sister continued to
live in Togo, apparently unharmed. Indeed, her mother voluntarily
returned to Togo after spending nearly a year and a half in the
United States during the 1990's, her brother was able to live in
Togo and travel freely for business, and her sister was able to
attend university in Togo.
While two of Bakuaya's brothers fled Togo and obtained
asylum abroad, one was apparently granted asylum in the United
Kingdom as part of an effort to clear a backlog of asylum
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applications there; the other was granted asylum in the United
States at least in part based on the same false testimony that
Bakuaya presented and later recanted. Even if certain of Bakuaya's
politically active family members were targeted for their
activities, the fact that several of her immediate family members
continued to live in Togo indicates that Bakuaya's familial and
tribal associations do not alone give rise to a well-founded fear
of persecution. See Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st
Cir. 1999).
Nor was the BIA's denial of her motion to reopen an abuse
of discretion. See Luis v. INS, 196 F.3d 36, 39 (1st Cir. 1999).
In support of her motion, Bakuaya submitted State Department
country reports showing an increased level of political and
sectarian violence in Togo surrounding the president's death in
2005 and the contested elections held in April of that year. Yet
the 2006 report shows that violence later abated in large part; and
the 2005 report, which evidences some violent suppression of
political opposition groups, does not establish that Bakuaya--who
is not herself politically active--would likely be targeted in
Togo.
In her motion, Bakuaya also claimed that following the
denial of her asylum application, she learned that her brother was
attacked and beaten by Togolese soldiers and later fled to
neighboring Benin. She submitted medical reports indicating he was
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attacked by government soldiers. Bakuaya's own affidavit says that
the soldiers asked for his identification card before they attacked
him, noted the town he was from, and may have assaulted him because
his name and place of residence betray his tribal affiliation.
In denying Bakuaya's motion to reopen, the BIA said
tersely that the affidavit did not represent first-hand knowledge
by Bakuaya or the doctors as to why the brother was attacked and,
given the prior seriously false statements made by Bakuaya, the
medical reports were not enough to meet the relevant standard for
a motion to reopen--establishing a prima facie case for the relief
sought. INS v. Abudu, 485 U.S. 94, 104 (1988).
If we were deciding the issue de novo, we might well say
that the signs pointed to an attack on Bakuaya's brother motived by
tribal or political hostility, even though there is no first-hand
evidence of motivation nor an affidavit from the brother. But
even if this were so, it would indicate only what we already know
from country reports, namely, that a certain amount of random
tribal-motivated violence exists in Togo. There is no indication
that Bakuaya's brother was targeted because of his family
connections in which she shared. See Pieterson v. Ashcroft, 364
F.3d 38, 44-45 (1st Cir. 2004).
In any case, the Board was not prepared to assume that
the brother had been attacked based on tribal or political
associations. Given Bakuaya's record of false statements and the
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unexplained absence of any affidavit from her brother, it was not
an abuse of discretion for the BIA to insist on a stronger factual
showing as a predicate. "[M]otions to reopen are disfavored in
deportation proceedings" because of the "strong interest in
bringing litigation to a close promptly." Abudu, 485 U.S. at 107,
108.
Finally, Bakuaya argues that her remaining family members
in Togo were only able to live there unharmed because, in the case
of her mother, the government was unlikely to target an elderly
woman, and that her mother possessed embarrassing information about
Togo's political leaders; and in the case of another brother,
because he had since joined the ranks of the governing party. [AR
14] But Bakuaya admits she is not and has never been affiliated
with any opposition political groups, and therefore has not shown
why she is a more likely target of government harassment than her
other non-political family members.
The petition for review is denied.
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