United States Court of Appeals
For the First Circuit
No. 07-2328
GRACE M. LUTAAYA,
Petitioner,
v.
MICHAEL B. 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.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Hillel R. Smith, Attorney, Office of Immigration Litigation,
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, U.S. Department
of Justice, on brief for respondent.
July 28, 2008
LYNCH, Chief Judge. On July 11, 2007, the Board of
Immigration Appeals ("BIA") denied relief from removal to Grace
Lutaaya, a Ugandan citizen. It affirmed an Immigration Judge's
("IJ") decision that (1) Lutaaya's asylum application was untimely
filed and the delay was not excused, see 8 U.S.C. § 1158(a)(2)(B),
(a)(2)(D); and (2) she had not met her burden for withholding of
removal and protection under the Convention Against Torture ("CAT")
because she was not credible.
On her petition for review, we lack jurisdiction over the
denial of asylum. The CAT claim is not before us because she did
not exhaust that claim before the BIA. The decision on her
application for withholding of removal is amply supported in the
record and we deny the petition.
I.
Grace Lutaaya entered the United States on December 11,
1997 on a six-month non-immigrant visitor visa, overstayed, and was
charged with removability on September 13, 2000. Lutaaya filed an
application for relief, which is the subject of this petition, on
April 13, 2005, claiming a fear of future persecution in Uganda
because of her membership in the Democratic Party ("DP") and
because she had been attacked in 1996 by members of the Ugandan
military. Lutaaya was given two hearings; the second was so that
she could have additional time to collect documents, which were
wanting, in support of her claim.
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A. Lutaaya's May 2005 Hearing
We describe Lutaaya's testimony before an IJ on May 20,
2005.1 She was born in Uganda and ran a delivery business with her
husband Vincent Sabeera until 1996. In January 1996, they won a
government bid to deliver food supplies to soldiers fighting a
rebel group known as the "Lord's Resistance Army" ("LRA") in the
northern part of the country. Sabeera left home in January for a
delivery trip and was ambushed and abducted by LRA soldiers.2 The
soldiers confiscated Sabeera's trucks and used them in several
raids, leading the Ugandan government to suspect Sabeera and
Lutaaya of collaborating with the LRA.
On April 2, 1996, four members of the Ugandan military
came to Lutaaya's house in Entebbe. They questioned her about
Sabeera's whereabouts. Lutaaya, who was seven months pregnant,
told them that she did not know what had happened to him. The
soldiers accused her and Sabeera of cooperating with the LRA. They
beat her, cut her with a sword, and raped her. The soldiers set
1
Lutaaya had been included as a spouse on an application
for asylum filed on May 22, 2000 by Vincent Sabeera, also a native
and citizen of Uganda. Noting that Sabeera's testimony regarding
his relationship to Lutaaya was "both internally and externally
inconsistent," the asylum officer suspected that Lutaaya and
Sabeera were brother and sister, not husband and wife, found
Sabeera not credible, and denied the application. Sabeera was
ordered removed in absentia after he failed to appear for a
scheduled hearing.
2
According to the asylum officer's report, Sabeera claimed
that he escaped after several months. He made his way to the
United States, arriving in 1999.
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fire to her house, but Lutaaya escaped and was taken to a hospital
the next day. She delivered prematurely on April 4.
After leaving the hospital, Lutaaya stayed with her
mother in a town about twenty-five miles away but fled in September
after government agents sought her there. She stayed with friends
throughout the country and obtained a visa from the American
Embassy, leaving for the United States in December 1997. Lutaaya
left her baby in the care of her mother and left her five older
children in the care of relatives.
Lutaaya testified that she and her husband had been
active supporters of the Democratic Party ("DP") in Uganda, a group
that opposed the government but was unrelated to the LRA. She
joined the DP in 1991 and supported the party by organizing the
women's wing in Entebbe and, with Sabeera, hanging posters for
campaigns.
Lutaaya stated that she feared future persecution from
the Ugandan government because of her support for the DP and
because "the same government" whose soldiers had attacked her for
allegedly collaborating with the LRA was still in power. She
stated that government agents went to her mother's place of
business in September 2004 to inquire about Lutaaya's whereabouts.
When asked about her failure to apply for asylum within
one year of her arrival, Lutaaya testified that she had not known
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how to file and had lacked the funds to hire an attorney. She said
that she could afford to file only after her husband arrived.
During questioning, the IJ and counsel for the government
raised several discrepancies between Lutaaya's testimony and her
earlier statements to the asylum officer who had interviewed her
and Sabeera in 2000 and gave her the opportunity to explain. For
example, the asylum officer reported that Sabeera and Lutaaya had
claimed that the infant delivered on April 4, 1996 was stillborn,
not premature. Lutaaya had also reportedly told the asylum officer
that five soldiers, not four, were involved in the attack and rape.
Her explanation for the discrepancy was that she denied making
either statement to the asylum officer.
The IJ found that Lutaaya had not provided documentation
to corroborate her testimony but granted her a continuance to
enable her to obtain her birth certificate, hospital records from
1996, and records of her and her husband's membership in the DP.
Lutaaya had submitted photographs purportedly of her stab wound
from the attack.
B. The November 2005 Hearing and the IJ's Decision
At the next hearing, nearly six months later on November
14, 2005, Lutaaya submitted an undated identification card from the
DP, a copy of her birth certificate, photographs of her children
and several school records, and a letter dated August 1, 2005 from
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Dr. Odama Stephen Baroa of Hope Medical Center concerning her
treatment in 1996.
The letter, titled "Mrs. Grace Lutaaya Sabera [sic]
Mpoza's Medical Report," stated that Lutaaya had been brought into
the hospital in 1996 with profuse bleeding; that she reported that
she had been raped, stabbed, and beaten; and that she had delivered
a premature baby.3 The IJ questioned Lutaaya about the letter and
about her failure to obtain records contemporaneous with the 1996
hospitalization. Lutaaya claimed that the letter was the only
record she was able to obtain. Under cross-examination, Lutaaya
acknowledged that the letter contained both a telephone number and
an email address, but testified that she had not followed up with
the doctor to request medical records contemporaneous with her
treatment. The judge admitted the letter into evidence but stated
that Lutaaya had not provided medical records as he had requested.
As to the undated party identification card, Lutaaya
testified that she had received the card, through a friend, in
3
The letter stated:
The above-mentioned person has been my client
from your 1994 -1996. But in 03/04/1996. She
was brought at the unit at night with profuse
bleeding from the back. She reported that she
was stabbed by a knife, raped and beaten, she
was 32 weeks old pregnant unfortunately the
following day she delivered a premature baby
because of the torture done by the gang stars.
Fortunately the baby survived up to now the
child is living.
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September 2005 and had lost the original card when her home was
burned.
The IJ issued an oral decision finding Lutaaya
statutorily ineligible for asylum because she did not file her
application within one year of her arrival and because she was not
eligible for an exception to the filing deadline due to changed
circumstances affecting her eligibility or extraordinary
circumstances relating to the delay. See 8 U.S.C. § 1158(a)(2)(B),
(a)(2)(D).
The IJ denied Lutaaya's application for withholding of
removal as well, finding her not credible. The IJ relied on the
record, the testimony, and the documentation. Though he had given
Lutaaya the chance to provide additional documents, the IJ
concluded that Lutaaya failed to corroborate her testimony, listing
several concerns.
First, he found that Lutaaya did not provide credible
testimony to show that she would be subject to persecution because
of her support for the DP. While Lutaaya claimed that she and
Sabeera were "strong members" of the party, Sabeera's asylum
application "did not reflect any membership in the Democratic
Party" or claim it as a basis for relief. The IJ found the
membership card suspect and not credible, noting that it was
undated.
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Second, the IJ found Lutaaya's testimony about her
marriage to Sabeera to be not credible. Sabeera's asylum
application stated that he had only two children. Lutaaya's listed
six, and the birth certificates of two of her children listed the
father as a man with the last name of Mpoza.4 Lutaaya had used the
name "Mpoza" on several official documents, but rarely used
"Sabeera". Both Lutaaya's 1996 visa and the passport with which
she entered the United States, obtained in 1993, were under the
name "Grace Najjemba Mpoza Lutaaya." In addition, while Lutaaya
had submitted what purported to be a marriage certificate for her
and Sabeera from October 12, 1984, she never submitted a divorce
decree.
Finally, the IJ relied on the report of the asylum
officer who had interviewed Lutaaya and Sabeera in 2000. The
officer raised the possibility that Lutaaya and Sabeera were
brother and sister rather than husband and wife and found Sabeera's
testimony about their relationship not credible for a number of
reasons. The officer questioned why Sabeera would have to ask
permission from Lutaaya to live with her if they were husband and
wife and found it unlikely that Sabeera would not have located his
wife after he escaped detention and before she left Uganda. In
addition, while Sabeera stated that he was not aware that his wife
4
The other two birth certificates listed the father as a
third man named "Mpoza Nsambya" with Lutaaya bearing the surname
Nsambya as well.
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was in the United States when he entered the country, he listed
Waltham, Massachusetts -- the city in which Lutaaya lived -- as his
intended address on his entrance documents. The officer also noted
that Sabeera's mother and Lutaaya shared the same first name, that
Lutaaya and Sabeera could not present a marriage certificate and
Lutaaya could not produce a passport, that Sabeera had stated he
had a sister in the United States but did not know where she was,
and that Lutaaya was older than Sabeera.
Third, the IJ concluded that Lutaaya's testimony that she
was attacked, stabbed, and raped was not credible. The IJ noted
the inconsistencies between her testimony and the record and ruled
that, although he had given her time to provide corroboration,
Lutaaya had "not submitted any credible documentation to support
her contention that she was attacked by Ugandan government
officials or soldiers." He concluded that the photographs Lutaaya
submitted of her purported stab wounds were not consistent with her
testimony.
Fourth, the IJ found that Lutaaya's description of her
hospitalization was not credible. Lutaaya failed to provide
contemporaneous records, instead providing an after-the-fact letter
from her purported doctor that was found to be not valid and not
credible.5
5
In addition, Lutaaya told the asylum officer that her
baby had been stillborn; while in her testimony, she stated that
the baby was premature.
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Fifth, the IJ found Lutaaya's testimony as to why she
left Uganda not to be credible.
Consequently, the IJ found that Lutaaya had not met her
burden of establishing that it was more likely than not that she
had been persecuted or would face persecution if she were to return
to Uganda on the basis of one of five protected categories, see 8
U.S.C. § 1231(b)(3)(A), such as her membership in the DP.6
The BIA affirmed and wrote its own opinion. The BIA
upheld the IJ's finding that Lutaaya's asylum application was
untimely and that she failed to demonstrate extraordinary or
changed circumstances. Noting the IJ's concerns regarding Lutaaya
and Sabeera's true relationship and regarding the circumstances of
the attack and rape, the BIA held that Lutaaya had not met her
burden of showing them clearly erroneous, finding the concerns well
supported in the record. The BIA concluded that Lutaaya had not
met her burden of showing that it was "more likely than not" that
she would be persecuted or tortured if she were made to return to
Uganda. Lutaaya's timely petition followed.
6
The IJ concluded that Lutaaya's CAT claim failed for
similar reasons. Because Lutaaya had failed to substantiate her
claim that she was beaten and raped, the IJ found that she had not
established that she had been tortured in the past by the Ugandan
government or that she would be tortured if she were to return to
the country. Because Lutaaya did not challenge the IJ's denial of
CAT relief before the BIA, that issue is not properly before this
court. See Chikkeur v. Mukasey, 514 F.3d 1381, 1382 (1st Cir.
2008); see also 8 U.S.C. § 1252(d)(1).
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II.
We consider petitioner's challenge to the BIA's decision
on her asylum application separately from her withholding of
removal claim.
A. Lutaaya's Asylum Application
We have no jurisdiction to review the Attorney General's
determination that an asylum application is untimely and unexcused
by circumstances. See 8 U.S.C. § 1158(a)(3); Heng v. Gonzales, 493
F.3d 46, 47 (1st Cir. 2007); Pan v. Gonzales, 489 F.3d 80, 84-85
(1st Cir. 2007). Congress "carefully circumscribed the scope of
judicial review" over timeliness determinations in such cases.
Pan, 489 F.3d at 84.
Nonetheless, Lutaaya argues that we can review the denial
of asylum under 8 U.S.C. § 1252(a)(2)(D) because, she argues, she
presents "constitutional claims or questions of law" in a petition
before the appropriate court of appeals, which are reviewable. She
argues that the IJ violated her due process rights by "fail[ing] to
consider [Lutaaya]'s testimony and [failing to] allow [Lutaaya] to
fully explain her reasons for failing to meet the one-year
deadline." This is not even a colorable constitutional claim and
so we lack jurisdiction. See Mehilli v. Gonzales, 433 F.3d 86, 93
(1st Cir. 2005); see also Pan, 489 F.3d at 84. Indeed, Lutaaya
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presents no constitutional claim at all.7 See Kalitani v.
Ashcroft, 340 F.3d 1, 5 (1st Cir. 2003) ("[Petitioner]'s [due
process] argument boils down to an assertion that the IJ should
have believed her. But the IJ was not compelled to believe her, and
substantial evidence . . . supports his decision not to do so.");
Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003) (concluding
that an argument that the IJ "improperly overlooked evidence," thus
violating petitioner's due process rights "is, in our view, just a
variation on a substantial evidence challenge"); see also Mehilli,
433 F.3d at 93 ("BIA findings as to timeliness and changed
circumstances are usually factual determinations.").
B. Lutaaya's Withholding of Removal Claim
Where the BIA has written separately while deferring to
and affirming the decision of an IJ, we review both the BIA's
decision and the relevant portions of the IJ's decision.
Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004). We
uphold the decision so long as it is "supported by reasonable,
substantial, and probative evidence on the record considered as a
7
Lutaaya also argues that her counsel at the hearing asked
questions that were "vague and poorly worded" such that Lutaaya was
"unable to deliver fully-developed testimony as to why she did not
file within one year." However, neither Lutaaya's written response
to the question in her asylum application of why the application
was untimely nor her submission to this court provide any
additional explanations. If Lutaaya is attempting to raise an
ineffective assistance of counsel claim, we need not consider it
because Lutaaya failed to present it to the BIA. See 8 U.S.C. §
1252(d)(1); Sombah v. Mukasey, 529 F.3d 49, 52 (1st Cir. 2008);
Chikkeur, 514 F.3d at 1382.
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whole." Tum v. Gonzales, 503 F.3d 159, 161 (1st Cir. 2007)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal
quotation marks omitted). When the BIA has affirmed an IJ's
adverse credibility determination, "we will uphold the
determination unless the evidence compels a different result."
Vallejo Piedrahita v. Mukasey, 524 F.3d 142, 144 (1st Cir. 2008).
To succeed on a claim for withholding of removal, the
burden is on Lutaaya to show that, upon deportation, she is "more
likely than not to face persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." Sharari v. Gonzales, 407 F.3d 467, 474 (1st Cir. 2005);
see also 8 U.S.C. § 1231(b)(3)(A). The conclusion that she did not
meet her burden is supported by substantial evidence.
The IJ, as noted above, pointed to several material
discrepancies, which are present in the record. See Cuko v.
Mukasey, 522 F.3d 32, 36 (1st Cir. 2008). The BIA, in its separate
opinion, noted discrepancies between the facts recounted in the
asylum officer's report (such as the fact that Lutaaya's child was
stillborn) and Lutaaya's later testimony and the facts stated in
the doctor's letter.
These discrepancies are material and go to the heart of
Lutaaya's claim.8 Her membership and active support of the DP was
8
See Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st
Cir. 1999). The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat.
231, allows discrepancies to support an adverse credibility finding
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the basis of her claim that she would face persecution if she were
made to return to Uganda. The documents that she provided to
substantiate her membership in the DP were unpersuasive.
Further, Lutaaya's and Sabeera's true relationship was
material to her claim of past persecution. This relationship had
already been rendered suspect by the asylum officer's report. In
addition, while Sabeera's 2000 application for asylum, made part of
the record, lists the date of their marriage as January 10, 1984,
the purported marriage certificate that Lutaaya submitted to the IJ
lists the date as October 12, 1984. In addition, Lutaaya claimed
that she and Sabeera had divorced in the United States; she easily
could have obtained the divorce decree.
Finally, there were discrepancies between Lutaaya's
accounts that she was attacked and raped. See Zeru v. Gonzales,
503 F.3d 59, 69-71 (1st Cir. 2007) (concluding that an IJ could
base a credibility determination on an applicant's inconsistent
descriptions of a sexual attack where the applicant had the
opportunity to explain discrepancies and to provide corroborating
evidence). When pressed about the inconsistencies between her
description of the purported rape and attack during her testimony
and the asylum officer's report, she denied that was what she said
"without regard to whether [the] inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant's claim." 8 U.S.C. §
1158(b)(1)(B)(iii). This provision applies only to applications
filed after May 11, 2005, and is inapplicable here. See Chanthou
Hem v. Mukasey, 514 F.3d 67, 69 n.3 (1st Cir. 2008).
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to the asylum officer and suggested that a "printing error" had
occurred. As the agency found, Lutaaya was unable to provide a
persuasive explanation for these discrepancies. A report from an
asylum interview "enjoys a presumption of regularity." Pan, 489
F.3d at 86.
Lutaaya's brief argues that the IJ failed to address the
credibility of her oral testimony but made an adverse credibility
determination based purely on documents. This is flatly untrue:
the IJ expressly relied on her testimony, along with the
documentary evidence, to reach his adverse credibility
determination. While an asylum applicant may carry his or her
burden through credible testimony alone, see Diab v. Ashcroft, 397
F.3d 35, 40 (1st Cir. 2005), we cannot say that the evidence
compels us to conclude that the IJ's determination that the
testimony was not credible, and that a combination of testimony and
corroborative evidence was required, see id., was in error.
Lutaaya argues that the IJ erred in finding Dr. Baroa's
letter not credible. However, she failed to produce records
contemporaneous with her hospitalization although she had been
given a continuance to do so. And a letter written nine years
after the fact purporting to be from a doctor was itself
inconsistent with her testimony. The letter stated that Lutaaya
was "brought [to] the unit at night." Under questioning from the
IJ, however Lutaaya testified that neighbors administered first aid
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and only took her to the hospital the morning after the attack.
She had adequate time to produce contemporaneous records, but did
not. See Rodriguez Del Carmen v. Gonzales, 441 F.3d 41, 44 (1st
Cir. 2006) (concluding that the IJ was not compelled to credit
documentary evidence given a reasonable basis to suspect its
authenticity). The letter contained both a telephone number and an
e-mail address for the hospital. Lutaaya had enough time to
contact the hospital to request either contemporaneous records or
some credible evidence that such records were unavailable.
The petition for review is denied.
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