Bah v. Gonzales

NOT FOR PUBLICATION
File Name: 05a0703n.06
Filed: August 12, 2005

No. 04-4166

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

AHMED BAH, )
)
Plaintiff-Petitioner, ) ON PETITION FOR REVIEW OF A
) DECISION OF THE BOARD OF
v. ) IMMIGRATION APPEALS
)
ALBERTO GONZALES, ATTORNEY )
GENERAL, ) OPINION
)
Defendant-Respondent. )
)

Before: NELSON and GILMAN, Circuit Judges; and DONALD, District Judge.*

BERNICE BOUIE DONALD, District Judge. Petitioner Ahmed Bah’s (“Bah” or

“Petitioner”) application for political asylum or for withholding of removal was denied by the

Immigration Judge (“IJ”), and Bah was ordered to be removed from the United States. That decision

was affirmed by the Board of Immigration Appeals (“BIA”). Bah now petitions this Court for

review. For the reasons set forth below, we GRANT the Petition, VACATE the decision of the

BIA, and REMAND for further proceedings to determine whether Bah is entitled to the relief he

seeks.

*
The Honorable Bernice Bouie Donald, United States District Judge for the Western District of Tennessee,
sitting by designation.
No. 04-4166
Bah v. Gonzales

I. BACKGROUND

Petitioner is from Freetown, Sierra Leone. He and his father were both members of the

Sierra Leone People’s Party (“SLPP”), which is the party of the government. Bah attended a

meeting of the SLPP, and also held a meeting in his home. The Revolutionary United Front

(“RUF”) is a rebel group intent on the overthrow of the government.

Petitioner was captured by the RUF in 1997. He claims that he was beaten and tortured

because of his and his father’s involvement with the SLPP, and that he was forced to scavenge

through houses that were abandoned by villagers after the RUF destroyed the homes. He escaped

during a surveillance mission and returned to Freetown. In January, 1998, Bah was again captured

by RUF forces and claims that he was beaten so badly that he is now shorter on one side than the

other. Again Bah escaped. In May, 1998, Bah was captured, this time by members of the SLPP who

beat him because they believed that Bah’s father was trying to take over. Also in May, 1998, Bah’s

father was seized and killed. Bah became very emotional when testifying about the death of his

father.

Soon after the death of his father, Petitioner left Sierra Leone and went to Guinea, where he

lived for a year in a mosque. From Guinea, Petitioner traveled to Dakar, Senegal, where he

remained for approximately a year. Through a friend of his father’s, Bah was able to purchase a

passport and visa of someone named Ibrahima Mamadou Ly. With these documents, Bah was able

to illegally enter the United States on September 14, 2000. Petitioner claims that he will be tortured

and killed if he is returned to Sierra Leone.

-2-
No. 04-4166
Bah v. Gonzales

Petitioner applied for asylum and withholding of removal on December 14, 2000. His

hearing was held on April 3, 2002. The IJ denied Bah’s applications for asylum and withholding

of removal, and Bah appealed that decision. The BIA initially dismissed Bah’s appeal on February

24, 2004. However, when Bah’s attorney failed to file a timely appeal, Bah adequately alleged

ineffective assistance of counsel. The BIA then withdrew its original dismissal and reissued its

decision on September 9, 2004, again dismissing Bah’s appeal. The BIA adopted the findings of

the IJ that Bah did not show by clear and convincing evidence that he timely filed his asylum

application and that Bah was not eligible for withholding of his removal. Bah then timely filed his

petition for review with this Court on September 27, 2004.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review Petitioners’ administratively exhausted claims pursuant to

8 U.S.C. § 1105a(a), modified by section 309(c)(4) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”). Because the BIA affirmed the IJ’s decision

without opinion, we review the IJ’s decision as the final agency order under the “substantial

evidence” standard. Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir. 2004) (citing Denko v. I.N.S.,

351 F.3d 717, 730 (6th Cir. 2003)). The substantial evidence standard requires us to uphold the IJ’s

decision if it is “‘supported by reasonable, substantial, and probative evidence on the record

considered as a whole.’” Id. (quoting Koliada v. I.N.S., 259 F.3d 482, 486 (6th Cir. 2001)).

Moreover, we may not reverse “simply because [we are] convinced that [we] would have decided

the case differently.” Id. (quoting Adhiyappa v. I.N.S., 58 F.3d 261, 265 (6th Cir. 1995)). “Rather,

in order to reverse the BIA’s factual determinations, the reviewing court must find that the evidence

-3-
No. 04-4166
Bah v. Gonzales

not only supports a contrary conclusion, but indeed compels it.” Id. (quoting Klawitter v. I.N.S., 970

F.2d 149, 152 (6th Cir. 1992)). The standard under which a judicial review of an immigration

judge’s order is conducted is highly deferential. The IJ’s findings of fact are “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Id.; 8 U.S.C. §

1252(b)(4)(B). “This standard does not mean, however, that we must accept the IJ’s credibility

findings carte blanche. Rather, we must still subject these findings to meaningful judicial review.”

Nwakanma v. Gonzales, 126 Fed. Appx. 699, 700 (6th Cir. 2005).

III. ANALYSIS

A. Asylum

Petitioner bears the burden of establishing that he is a refugee who is eligible for asylum

either because he has suffered actual past persecution or because he has a well-founded fear of future

persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a); I.N.S. v. Elias-Zacarias, 502 U.S.

478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). If Petitioner demonstrates past persecution, he is

entitled to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. §

1208.13(b)(1); Mullai, 385 F.3d at 638. The government may overcome the presumption by

establishing by a preponderance of the evidence that there is “a fundamental change in

circumstances such that [Petitioner] no longer has a well-founded fear of persecution in [his] country

of nationality. . . .” 8 C.F.R. § 1208.13(b)(1)(i)(A); Mullai, 385 F.3d at 638. “The [government]

must do more than show that circumstances in the country have fundamentally changed; the

[government] must also show that such change negates the particular applicant’s well-founded fear

of persecution.” Ouda v. I.N.S., 324 F.3d 445, 452 (6th Cir. 2003) (citing Mikhailevitch v. I.N.S.,

-4-
No. 04-4166
Bah v. Gonzales

146 F.3d 384, 389 (6th Cir. 1998)). Additionally, in the absence of a well-founded fear of future

persecution, an asylum applicant may be eligible for Chen humanitarian asylum, if the applicant

establishes “compelling reasons for being unwilling or unable to return to [his] country arising out

of the severity of the past persecution. . . .” 8 C.F.R. § 1208.13(b)(1)(iii)(A); In re Chen, 20 I&N.

Dec. 16 (BIA 1989).

The BIA adopted the IJ’s findings that Petitioner was not eligible for asylum. The IJ based

his conclusion of law that Bah was not entitled to asylum on five factors: 1) Bah lacked credibility,

2) Bah did not demonstrate by clear and convincing evidence that his application for asylum was

timely filed, 3) Bah’s captures were for recruitment rather than persecution, 4) Bah’s own possible

participation in the persecution, and 5) the situation in Sierra Leone more closely resembled civil

war than persecution.

First, the IJ found Bah’s testimony unconvincing. The essential element to a finding of a

lack of credibility is that the discrepancies must go to the heart of the petitioner’s claim. See

Daneshvar v. Ashcroft, 355 F.3d 615, 619 (6th Cir. 2004). Furthermore, there is a difference

between major and minor inconsistencies. See Huang v. Ashcroft, 113 Fed.Appx. 695, 700 (6th Cir.

2004) (citing Yu, 364 F.3d at 703-04). “Major inconsistencies go to the heart of a petitioner’s

asylum claim. In contrast, minor inconsistencies reveal nothing about petitioner’s persecution and

therefore are an inadequate basis for an adverse credibility finding, though they can give

supplemental support to an adverse credibility finding premised on other grounds.” Id.

In his Findings of Fact, the IJ was concerned with omissions or discrepancies in the

testimony of Petitioner. In addition to inconsistencies concerning Bah’s entry date (discussed infra)

-5-
No. 04-4166
Bah v. Gonzales

the IJ was specifically concerned that 1) Bah failed to mention in his application that, in addition to

the two captures he described, there was a third beating by SLPP supporters, and 2) Bah testified

that he left Sierra Leone in June, 1998, while his application declared that he left in December, 1998.

Additionally, in the Statement of the Case, the IJ noted a number of “variances,” specifically: 1)

Bah’s application stated that he lived in Conakry, Guinea, but he testified that he lived in a mosque

but was vague as to the exact location of the mosque, 2) Petitioner testified that he was beaten so

badly by the RUF that one side is now shorter than the other, but he offered no medical evidence to

support that assertion, 3) Petitioner testified that the person who prepared the application made

mistakes, but the IJ seems to have found that incredible because the preparer got some of the details

correct, and 4) Bah testified at one point that his wife died in January, 2000, and at another point he

testified that she died in January, 2001.

Bah’s failure to include the beating by SLPP members on his application was not an

indication that he lacked credibility. First, “[s]uch a failure may be an omission, but it is not an

inconsistency.” Nwakanma v. Gonzales, 126 Fed.Appx.699, 701 (6th Cir. 2005). Second, Bah

explained that there were difficulties with the person filling out the form. Third, it is an irrelevant

and insignificant omission. Bah’s testimony and application matched concerning the captures and

beatings by the RUF. The fact that Bah did not include on his application a beating by his own party

because of some internal strife is immaterial to his claim.

Bah explained that the inconsistency concerning the date of his departure from Sierra Leone

was caused by an error on the part of the translator. Furthermore, because he testified to an earlier

departure date than his application showed, the discrepancy would not bolster his case, but instead,

-6-
No. 04-4166
Bah v. Gonzales

if anything, would damage his case. Thus, it is unlikely that Petitioner’s inconsistency would

support a finding of incredibility. “If discrepancies cannot be viewed as attempts by the applicant

to enhance his claims of persecution, they have no bearing on credibility.” Id. (citations omitted).

The IJ’s concerns in the Statement of the Case are even less indicative of incredibility. The

only discrepancy mentioned in that section of the IJ’s order was whether Bah’s wife died in January,

2000 or January, 2001. Bah explained that he was nervous and got the year wrong the first time.

Either way, it was after Petitioner left Sierra Leone and is irrelevant to Bah’s asylum application.

The IJ’s concerns that Bah was vague about where the mosque in which he lived in Guinea was

located and that the person preparing the application got some details right and others wrong are

irrelevant, at best, and do not support a finding of incredibility. Although Bah’s claim would

certainly have been bolstered had he offered medical evidence to support his assertions concerning

the severity of the beating he received, corroborating evidence is not always required. “The

testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without

corroboration.” 8 C.F.R. § 208.13(a). Furthermore, that alone would not be enough to support a

finding of incredibility. The IJ could have chosen not to take into consideration Bah’s testimony

concerning one leg now being shorter than the other, but that does not make Petitioner less credible.

In Nwakanma v. Gonzales, the IJ based his decision on inconsistencies such as the number

of men who searched the petitioner’s home, the number of times his home was attacked,

inconsistencies in dates, and events that were described in the application that were omitted during

testimony. Nwakanma, 126 Fed.Appx.at 701. This Court held that the inconsistencies were

“irrelevant and do not support an adverse credibility finding.” Id. at 702.

-7-
No. 04-4166
Bah v. Gonzales

Similarly, in the instant case, the minor inconsistencies discussed above are irrelevant and

do not support a finding of incredibility. The only grounds cited by the IJ in finding a lack of

credibility were “minor inconsistencies that reveal nothing about [Bah’s] persecution and therefore

are an inadequate basis for an adverse credibility finding.” Huang,113 Fed.Appx. 695, at 700. Thus,

the IJ’s finding of incredibility is not based on substantial evidence and is reversed.

The second basis for the IJ’s determination was that he found that Bah did not demonstrate

by clear and convincing evidence that he timely filed his asylum application. The IJ found that

Bah’s testimony was unclear as to his date of entry into the United States. Bah testified that he

arrived on September 14, 2000, while his application stated that he arrived on September 30, 2000.

Petitioner testified that he tried to correct the entry date with the asylum officer, and, in fact, the

application shows the corrected date. Thus, there was really no discrepancy at all. Moreover, it is

significant that Petitioner’s application was timely, regardless of which date was correct. An alien

must file an application within one year of entry into the United States. Bah’s application was filed

on December 14, 2000. Whether he arrived on September 14, 2000 or September 30, 2000, he was

well within the one-year time limit. Therefore, the IJ’s finding concerning timeliness is not

supported by the evidence.

The Government argues that we do not have jurisdiction to review the IJ’s determination that

Petitioner’s asylum application was not timely filed. Section 208(a)(3) of the Immigration and

Naturalization Act provides that “[n]o court shall have jurisdiction to review any determination of

the Attorney General” as to whether an asylum application was timely filed. 8 U.S.C. § 1158 (a)(3).

Citing Gjyzi v. Ashcroft, 386 F.3d 710 (6th Cir. 2004), Petitioner contends that there is no reasoned

-8-
No. 04-4166
Bah v. Gonzales

basis for the determination and, thus, due process requires us to review the IJ’s determination of the

untimeliness of Bah’s asylum application. In Gjyzi, as in the instant case, the IJ found that, because

of the incredibility of the applicant, there was not clear and convincing evidence to support a finding

that the applicant had filed his application for asylum within one year of his arrival in the United

States. Id. at 713. However, in Gjyzi, when the BIA reviewed the IJ’s order, it reversed the IJ’s

adverse credibility finding but affirmed the IJ’s determination that the application was untimely.

Id. On appeal, this Court found that once the BIA reversed the IJ’s credibility findings, there was

no longer a “reasoned basis” to hold that the application was untimely. Id. at 715. Thus, the Court

stated that it was not reviewing the timeliness determination, but rather, a legal error made by the

BIA. Id.

In the instant case, the BIA affirmed the IJ’s findings concerning both credibility and

timeliness. Therefore, the BIA did not make the type of legal error considered in Gjyzi. As such,

Petitioner is not requesting that we review a legal error made by the BIA, but is requesting review

of the timeliness determination, over which we do not have jurisdiction. However, because we

conclude that the IJ did not have substantial evidence to find that Bah was incredible, the timeliness

determination should be reexamined upon remand based upon the evidence proffered, specifically,

the I-94 card and plane ticket used by Bah to enter the United States, which were entered into

evidence without objection, as well as Bah’s unrebutted testimony.

The third conclusion of law upon which the IJ based his decision was that the testimony

concerning Bah’s captures appeared to the IJ to be recruitment by the RUF to “bolster their ranks,”

rather than retribution for opposing political opinion. However, the IJ did not address the treatment

-9-
No. 04-4166
Bah v. Gonzales

that Bah received after capture. It is possible that he was captured to bolster the ranks of the RUF,

but was beaten and tortured after the captures because of his political opinions and those of his

father.

The IJ’s fourth basis for his decision was that he questioned Bah’s own participation in the

persecution of others by the RUF. However, that finding was expressly overturned by the BIA.

Although the BIA affirmed the decision of the IJ without opinion, it reversed the IJ’s finding that

Bah may have participated in the persecution of others by the RUF.

Finally, the IJ stated that the situation in Sierra Leone described by Bah sounded more like

civil strife, which does not always require a grant of asylum, than persecution based on political

opinion. See 8 C.F.R. § 1208.13(b)(1). However, the IJ not only referred to the acts performed by

the RUF as persecution, but suggested that Petitioner participated in the acts of persecution.

Furthermore, the IJ recognized that the citizens of Sierra Leone “have turned on one another in

sometimes unspeakably cruel ways.” Moreover, as noted above, the IJ considered only the RUF’s

purpose for capturing Bah, not its purpose for his mistreatment following capture. We believe that

the IJ needs to examine that treatment and what motivated it before determining whether or not Bah

was persecuted or if he has a well-founded fear of future persecution based on his political opinion.

Accordingly, the Court holds that the IJ’s determinations were not supported by substantial

evidence. Thus, Petitioner’s request for asylum is remanded for further review consistent with this

opinion.

- 10 -
No. 04-4166
Bah v. Gonzales

B. Withholding of Removal

The Court must “uphold the BIA’s determination against withholding the removal of an

alien, unless it is ‘manifestly contrary to the law.’” Castellano-Chacon v. I.N.S., 341 F.3d 533, 552

(6th Cir. 2003) (quoting Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001)). Moreover, “all

administrative findings of fact are ‘conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’” Id.

To qualify for withholding under the INA, an applicant must demonstrate that there is a clear

probability that he would be subject to persecution if he were returned to the country he fled

“because of [his] race, religion, nationality, membership in a particular social group, or political

opinion.” Id. at 545 (quoting 8 U.S.C. § 1231(b)(3)(A)). Thus, the applicant must establish that “it

is more likely than not that he or she would be persecuted” based on one of the five factors. 8 C.F.R.

§ 208.16(b)(2). The burden of proof for establishing persecution for withholding purposes under

the INA is clear probability, which is a more burdensome standard than the asylum standard of a

reasonable possibility. Castellano-Chacon, 341 F.3d at 545.

In considering Bah’s eligibility for withholding, the IJ determined simply that, because Bah

did not qualify for asylum, it would not be possible for him to meet the higher burden required for

withholding. However, as discussed above, the IJ’s bases to find that Petitioner was not credible

were not supported by substantial evidence. Because we are reversing the findings concerning Bah’s

eligibility for asylum, upon remand, the IJ should reconsider the question of withholding eligibility

for the reasons stated above.

- 11 -
No. 04-4166
Bah v. Gonzales

IV. CONCLUSION

For all of the reasons set forth above, we GRANT the petition, VACATE the decision of

the BIA, and REMAND for further proceedings to determine whether Bah is entitled to the relief

he seeks.

- 12 -