NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0406n.06
Filed: May 17, 2005
No. 03-4304
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ABDURAHMAN MOHAMMED ALI, )
)
Petitioner, )
)
v. ) ON APPEAL FROM THE BOARD OF
) IMMIGRATION APPEALS
ALBERTO GONZALES, Attorney )
General, )
)
Respondent. )
)
Before: GUY, DAUGHTREY, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Abdurahman Mohammed Ali petitions for
review of an order of the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ)
decision denying his requests for asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (CAT).
I.
Ali alleges that he was born in Somalia in 1970. In 1999 he was smuggled into this country
across the border from Mexico. He promptly applied for asylum, withholding of removal, and
protection under the CAT, and a merits hearing was conducted by an IJ. At the hearing, Ali testified
that he was persecuted in Somalia based on his clan membership. He asserted membership in a clan
that, according to the State Department Country Report on Somalia in the record, is one of the
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lowest castes in Somali society and politically powerless, particularly after the overthrow of the
Somali government in 1991. Ali testified that, in that year, his mother and older brother were killed
by militia from an opposing clan, his sister was raped, and he was beaten and arrested. He escaped,
only to be arrested again a few months later. He was detained under harsh conditions and forced
to perform labor for the militia until 1997, when he managed to escape to a refugee camp in Kenya,
where his father and remaining siblings were also living. While in Kenya, he was twice arrested and
threatened with return to Somalia until his father paid bribes to the Kenyan police. Eventually, his
father paid for him to be smuggled into this country.
At the conclusion of the hearing, the IJ issued an oral decision finding that Ali had not
credibly established his identity, based primarily on his failure to offer any corroborating evidence.
Consequently, all the relief requested was denied. The BIA adopted the IJ’s decision for the reasons
stated therein. Ali argues that the IJ’s holding that he was required to corroborate his testimony was
unreasonable. He reasserts his claims for asylum, withholding of removal, and protection under the
CAT.
II.
We must consider whether the IJ correctly determined that Ali failed to sustain his burden
of establishing eligibility for asylum or protection under the CAT. The board’s decision will be
upheld if it is “supported by reasonable, substantial, and probative evidence on the record considered
as a whole.” Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (internal quotation marks and
citation omitted). This circuit has noted that this is a deferential standard in which the court cannot
reverse the board’s determination simply because it would have decided the matter differently. The
relevant inquiry is whether the applicable evidence “was such that a reasonable factfinder would
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have to conclude that the requisite fear of persecution existed.” Id. (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)). Upon consideration, we conclude that the evidence in this case does not
meet this standard.
Ali, citing Qiu v. Ashcroft, 329 F.3d 140, 153-54 (2d Cir. 2003), argues that the IJ
unreasonably demanded corroboration for his testimony regarding his identity. He notes that one
who escapes persecution will rarely be in a position to bring corroborating documentary evidence.
Dia v. Ashcroft, 353 F.3d 228, 253 (3d Cir. 2003). However, it is also true that, when a factfinder
does not know what to believe, the failure to corroborate a claim can be fatal to the case. Sidhu v.
INS, 220 F.3d 1085, 1090 (9th Cir. 2000). In this case, even if Ali is correct that the IJ was
unreasonable in believing that he could have brought any corroborating identification documents
with him in his flight from Somalia, the IJ also noted that Ali failed to submit any affidavits from
his family in the Kenyan refugee camp, although he left there with the intent of seeking asylum in
this country and should have had time to procure such supporting evidence. Ali also testified that
he had contact with people in this country who had known him in Somalia, even in Memphis, where
the hearing was held, yet none of these people appeared to testify as to Ali’s identity, nor were any
affidavits from these acquaintances submitted. Ali does not explain this failure to corroborate his
claim, and it cannot be concluded that the IJ was unreasonable in finding the complete absence of
documentation of Ali’s nationality and claimed clan membership suspicious.
Furthermore, a recent Sixth Circuit case, Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir.
2004), approved the BIA’s corroboration rule and held that the rule does not place “unreasonable
demands on an applicant.”
According to INS regulations “[t]he testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. §§
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208.13(a); 208.16(b). The BIA has interpreted this permissive language to mean that
“where an alien’s testimony is the only evidence available, it can suffice where [it]
is believable, consistent, and sufficiently detailed to provide a plausible and coherent
account of the basis of the alien’s alleged fear.” In re M-D-, 1998 WL 127881, 21
I. & N. Dec. 1180, 1182 (BIA 1992) (citing Matter of Dass, 1989 WL 331876, 20
I. & N. Dec. 120, 124 (BIA 1989)). However, the BIA has also stated that “where
it is reasonable to expect corroborating evidence for certain alleged facts pertaining
to the specifics of an applicant’s claim, such evidence should be provided. . . . The
absence of such corroborating evidence can lead to a finding that an applicant has
failed to meet her burden of proof.” In re S-M-J-, 1997 WL 80984, 21 I. & N. Dec.
722, 724-26 (BIA 1997).
Id. In Dorosh the IJ found that the petitioner was not credible. The BIA reversed the IJ’s
credibility determination finding that the petitioner’s “testimony was adequately consistent both
internally and with her written application.” Id. at 381. “The BIA agreed with the IJ, however, that
Petitioner had not met her burden of proving eligibility for relief because she did not provide
sufficient corroboration of her claims.” Id. The petitioner in Dorosh did not provide affidavits from
her mother corroborating her claims of ill treatment or from her friends in the Ukraine providing
information about the danger she would face if she returned. Id. at 383. This court affirmed the BIA
finding that the petitioner “neither corroborated her testimony with reasonably expected
documentation nor provided an explanation for its absence.” Id.
Ali presented no corroborating evidence whatsoever. He provided no documentation or
evidence of his membership in Midgan clan and testified that there are no identifying characteristics
indicating membership in a particular clan. Because Ali’s claim of persecution was based entirely
on his clan membership, it was reasonable for the IJ to expect corroborating evidence such as
affidavits from family members in Kenya and acquaintances in Memphis.
The failure to establish his clan membership which was the basis for denying asylum also
renders his claim for protection under the CAT insufficient. Selimi v. Ashcroft, 360 F.3d 736, 741
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(7th Cir. 2004). Ali has not demonstrated that “it is more likely than not that [he] would be tortured
if [he was] returned to [his home country].” Id. Similarly, because Ali did not establish eligibility
for asylum, he cannot meet the more difficult standard required for withholding of removal. INS v.
Cardoza-Fonseca, 480 U.S. 421, 425 (1987).
III.
In summary, the evidence in this case does not compel a conclusion contrary to that of the
IJ, who found that Ali had failed to establish his nationality or membership in a persecuted group.
Accordingly, the petition for review is denied.
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