Zeito v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0868n.06
Filed: October 25, 2005

Case No. 04-3397

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MAJID MANSOUR ZEITO, )
)
Petitioner, )
) ON APPEAL FROM THE
v. ) UNITED STATES BOARD OF
) IMMIGRATION APPEALS
ALBERTO R. GONZALES, Attorney )
General, )
)
Respondent. )
)
_______________________________________

BEFORE: GUY, BATCHELDER, and GILMAN, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Petitioner Majid Zeito petitions this court to

review the order of the Board of Immigration Appeals (“BIA”) that affirmed the order of the

Immigration Judge (“IJ”) denying his petitions for asylum, withholding of removal, humanitarian

asylum, and relief under the United Nations Convention Against Torture and Other Forms of Cruel,

Inhuman or Degrading Treatment or Punishment (“CAT”). Because we find that Zeito did not

preserve his CAT request for our review and the IJ’s credibility determinations on the asylum and

withholding of removal requests are supported by substantial evidence, we DENY the petition for

review.

I.

Zeito, a Chaldean Catholic of the Assyrian ethnic group and an Iraqi citizen, fled that country

in July 1999 after his father was murdered by Ba’ath party officials. In the two applications he
completed as part of his application for asylum, he related that he was “reproached and abused” in

Iraq because of his religion, was not allowed to play with Muslim children, and performed poorly

in school because much of the curriculum centered around familiarity with Islam. Zeito’s father was

a member of the Assyrian party, an outlawed political party forced into the underground by Saddam

Hussein’s Ba’athist regime, and served in the Iraqi army during the Iran-Iraq and Iraq-Kuwait wars.

Zeito and his brother may have helped their father in his activities on a few occasions. As a result

of his political affiliations and religion, Zeito’s father was “constantly abused” and was detained on

a few occasions. Eventually, Zeito’s father was arrested on charges of treason, tortured, and killed

by the Ba’ath party for not donating money to the party when it was demanded. Party officials then

brought Zeito’s father’s “badly mutilated” body to Zeito’s home, told the family not to mourn, and

demanded money for the bullets used to kill him. Zeito stated that he was beaten by the officials on

this day.

Zeito’s mother then removed herself, Zeito, Zeito’s brother, and Zeito’s brother’s spouse to

Turkey, and Zeito continued on to Greece, France, and Mexico before entering the United States in

2001. Upon Zeito’s entry into the United States, an INS officer conducted a “credible fear”

interview to determine his eligibility for asylum. Zeito related his story, and the INS officer

conducting the interview found that there was “a significant possibility that the assertions underlying

the applicant’s claim could be found credible in a full asylum or withholding of removal hearing.”

The former Immigration and Naturalization Service (“INS”) commenced removal

proceedings against Zeito on November 15, 2001, and served him with a Notice to Appear in

immigration court, seeking removal on the ground that he did not have valid entry documents as

required by 8 U.S.C. 1182(a)(7)(A)(i)(I). Zeito admitted the charge, but petitioned the immigration

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court to remain in the United States under a grant of asylum, a withholding of removal, or as part

of the United States’ treaty obligations under the CAT.

At the evidentiary hearing before the IJ, Zeito testified to many of the same things that he

had mentioned in his previous two affidavits, but he added some details not contained in those

accounts and needed to clarify his testimony on several points. When asked about his father’s

experiences in the military, he stated that his father had been detained twice—once for a period of

ten days and later for a period of four days. He had earlier stated that his father had been detained

once for five weeks, but that detention was outside of his military service. Zeito also added more

detail to the description of the day the Iraqi officials brought his father’s body to the family,

claiming that the officials struck and broke Zeito’s mother’s hand when she attacked an officer.

Earlier, however, Zeito had stated that no other member of his family was injured on that day. He

stated later in the same hearing that he was never beaten by the officials that brought his father’s

body to the home.

Zeito also called his cousin, Madlen Zeito, to testify on his behalf. Ms. Zeito stated that

Zeito was beaten both by the government and by other children and that Zeito’s father was

frequently beaten by the government because of his opposition to the Ba’ath party. Ms. Zeito did

not claim to have any personal knowledge of Zeito’s father’s political activities, but stated that she

had heard that Zeito’s father had been a member of the Assyrian party. Later in the same hearing,

she stated that Zeito’s father was not a member of that party. She also related that she and Zeito

were not neighbors when they lived in Iraq, but later, when asked to explain evidence showing that

they lived at similar addresses on the same street during the same time period, she said that she was

not sure about that fact. Finally, Ms. Zeito gave three different accounts as to how she learned of

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Zeito’s father’s arrest: by hearing about it, by actually witnessing it, and by hearing the commotion

of the arrest and finding out the next day what had happened.

After the hearing, the IJ denied Zeito’s claims for relief. Zeito appealed the IJ’s order to the

BIA, which reversed the IJ’s determination that the asylum claim was frivolous but affirmed the

order in all other respects. Zeito now petitions this court to review the order of the Board pursuant

to 8 U.S.C. § 1252 (a)(1), arguing that the IJ’s findings that the testimony of Zeito and his witness

was not credible and that he is not entitled to asylum are not supported by substantial evidence; that

the Board improperly evaluated his claim for withholding of removal; and that he should have been

entitled to relief under the CAT because the IJ and BIA improperly considered the credibility of

testimony in determining whether he was entitled to CAT relief.

II.

On appeal of the IJ’s denial of the petitioner’s application for asylum and withholding of

removal pursuant to Sections 208(a) and 241(b)(3) of the Immigration and Nationality Act (“INA”),

8 U.S.C. §§ 1158(a) and 1231(b)(3), the BIA affirmed the IJ’s decision for the reasons stated therein,

but reversed the IJ’s determination that the claims were frivolous. When the BIA adopts the

decision of the IJ instead of issuing its own opinion, we review the IJ’s decision as if it were the

agency’s final order. Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). Our review is confined to

the administrative record on which the order of removal was based, and “the administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(A) and (B). Moreover, a discretionary decision to deny asylum

under 8 U.S.C. § 1158 “shall be conclusive unless manifestly contrary to the law and an abuse of

discretion.” 8 U.S.C. § 1252(b)(4)(D).

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 The INA prescribes a substantial evidence standard of review. Mullai v. Ashcroft, 385 F.3d

635, 638 (6th Cir. 2004). This standard requires us to uphold the BIA’s decision if the record as a

whole, and not simply the evidence in the record supporting the agency’s decision, contains

reasonable, substantial, and probative evidence sufficient to support the decision. Id. at 638. We

may not reverse simply because we would have decided the case differently; we may reverse the

board’s factual determinations only if the evidence compels a conclusion contrary to the one the

board reached. Id.; Adhiyappa v. I.N.S., 58 F.3d 261, 265 (6th Cir. 1995); Klawitter v. I.N.S., 970

F.2d 149, 152 (6th Cir. 1992).

A reviewing court must subject the IJ’s credibility determinations to “meaningful judicial

review.” Nwakanma v. Gonzales, 126 Fed. Appx. 699, 700, # 03-4317 (6th Cir. March 25, 2005)

(unpublished) (reversing an IJ’s credibility findings). A credibility finding adverse to a petitioner

“must be based on issues that go to the heart of the applicant’s claim,” and any discrepancies cannot

have a bearing on credibility unless they can “be viewed as attempts by the applicant to enhance his

claims of persecution.” Daneshvar v. Ashcroft, 355 F.3d 615, 619 n.2, 623 (6th Cir. 2004).

The INA grants the Attorney General the discretionary power to grant asylum to any alien

who qualifies as a “refugee” under 8 U.S.C. § 1101(a)(42). 8 U.S.C. § 1158(b)(1). A “refugee” is

defined as any person who is unable or unwilling to return to his or 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). It is the

alien who bears the burden of proving past persecution or a well-founded fear of future persecution,

8 C.F.R. § 208.13(a) & 8 C.F.R. § 208.16(b), but a petitioner who demonstrates past persecution is

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

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208.13(b)(1). If this presumption is established, the government may rebut it by showing by a

preponderance of the evidence that there has been a fundamental change in circumstances that would

remove that well-founded fear. 8 C.F.R. § 1208.13(b)(1)(i)(A); Mullai, 385 F.3d at 638; Ouda v.

I.N.S., 324 F.3d 445, 452 (6th Cir. 2003).

The IJ in this case determined that “[t]he respondent’s testimony and his application are

inconsistent” and that the inconsistencies were material because they went to the heart of his claim

for asylum, explaining that “respondent’s testimony omits events and details of his claims of

persecution set forth in the application” and that “respondent has failed to provide a convincing

explanation for these discrepancies and omissions.” She noted several differences between his

testimony and applications, which she deemed inconsistent, including the accounts of how involved

his father was in the Assyrian party, his brother’s involvement in his father’s affairs, and whether

or not Zeito himself was beaten and threatened by Iraqi officials. However, very few of these were

actually inconsistent and were in fact differences in the amount of information given at the various

stages of Zeito’s asylum application process.

The Government argues on appeal inconsistencies in Zeito’s story that the IJ did not mention

in her opinion. We think, however, that these alleged inconsistencies are more likely

misinterpretations of Zeito’s testimony at the hearing before the IJ or instances in which Zeito

simply provided more information at the hearing than he had provided in his asylum applications.

The IJ also found Zeito’s witness to be not at all credible, and concluded by stating that

“[t]he respondent has offered only his word as his evidence, and his word is not credible. He has

offered no explanation for his failure to provide corroborative, objective evidence of these claims.”

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She further provided that Zeito’s testimony was not sufficiently detailed, consistent, and believable

to stand by itself in support of his claim.

In Nwakanma, we reversed an IJ’s credibility findings for two reasons: (1) many of the

perceived inconsistencies were not actually inconsistencies, but rather were instances in which

certain information was presented in some stages of the proceeding but not in others, or the IJ was

simply mistaken that there were differences in the information presented; and (2) where there were

actually inconsistencies, those inconsistencies did not go to the heart of the claim, because they did

not seem to be an attempt to embellish the petitioner’s experiences in order to increase his chances

of being granted asylum. Nwakanma, 126 Fed. Appx. at 701-702.

The IJ’s credibility determinations in this case suffer from the same deficiencies, though they

are not as blatant as those found in Nwakanma. Several of her findings of inconsistency are not

actually inconsistencies at all, but rather are failures to provide the same amount of detail at different

stages of the proceeding. Nonetheless, the IJ’s credibility determinations must be upheld here for

several reasons.

First, the inconsistency relating to whether Zeito was ever beaten by Iraqi officials does go

to the heart of the matter, because it relates to whether he actually suffered any persecution

personally rather than vicariously through his father’s persecution. His accounts with regard to this

matter were actually inconsistent; they did not simply fail to provide the same information at

different times. Second, although the evidence Zeito offered to show his own personal persecution

due to his religious beliefs was never brought into question, there is enough of a question as to his

father’s level of activity in the Assyrian party (which would increase Zeito’s chances of persecution)

and as to Zeito’s own interaction with Iraqi officials for the IJ to question whether Zeito was

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embellishing his story in order to increase his chances of being granted asylum. Third, the IJ seemed

to place great weight on the questionable credibility of Zeito’s witness, who did actually contradict

herself in her testimony at the hearing in several particulars.

Finally, we have examined the initial application and corresponding affidavit, prepared while

Zeito was in Mexico, and the second application and corresponding affidavit, prepared after he

entered the United States. The initial statement described mostly religious persecution, but the

second added political persecution and his own interaction with Iraqi officials. We think that the

IJ reasonably could have concluded that the details added to the second application were calculated

to increase Zeito’s chances of being granted asylum, particularly in light of the fact that even more

detail was produced by Zeito at the hearing. Although the IJ’s conclusion—based on her credibility

determinations—that the asylum claims were frivolous was reversed by the BIA, the IJ’s

determination that his testimony was “so incredible [and] so contradictory as to be false”

demonstrates the strength of her belief was that Zeito was not credible.

We are required to award a high degree of deference to the credibility determinations the IJ

makes. See Mullai, 385 F.3d at 638. Simply saying that we would have found the witness to be

credible is not sufficient; rather, we must be able to say that the IJ could not have found that the

witness was not credible. See id. Because we cannot make the latter finding, we must affirm the

BIA’s decision denying asylum.

III.

An alien who qualifies as a refugee based on past persecution, but who cannot establish a

well-founded fear of persecution because of changed country conditions, may still qualify for a

discretionary grant of asylum. 8 C.F.R. § 208.13(b)(1)(iii). This so-called “humanitarian” grant of

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asylum was first developed by the BIA in Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989). In order

to qualify for this discretionary grant of asylum, the alien must either demonstrate “compelling

reasons for being unwilling or unable to return to the country arising out of the severity of the past

persecution” or “establish[] that there is a reasonable possibility that he or she may suffer other

serious harm upon removal to that country.” 8 C.F.R. § 208.13(b)(1)(iii)(A) and (B). We review

for abuse of discretion the IJ’s discretionary decision whether or not to grant relief pursuant to 8

C.F.R. § 208.13(b)(1)(iii). See Ngarurih v. Ashcroft, 371 F.3d 182, 191 (4th Cir. 2004).

The IJ’s discretionary decision to deny Zeito humanitarian asylum was based on the same

credibility determination that doomed his 8 U.S.C. § 1158(b)(1) asylum petition, and on the

additional finding that Zeito sought asylum in the United States (rather than in Greece, France, or

Mexico) primarily for economic reasons. Because the standard of review mandates deference to the

IJ’s credibility decision and the evidence of Zeito’s motives in coming to the United States is clear

from the record, we must also affirm this determination.

IV.

While a grant of asylum is discretionary, withholding of removal pursuant to Section

241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3)(A), is mandatory if the applicant can demonstrate that

there is a “clear probability” that he would be subject to persecution on account of one of the same

five protected bases for establishing asylum. I.N.S. v. Stevic, 467 U.S. 407, 430 (1984); Castellano-

Chacon v. I.N.S., 341 F.3d 533, 545 (6th Cir. 2003). But an applicant seeking withholding of

removal faces a more stringent burden of proof than one seeking asylum. Daneshvar v. Ashcroft,

355 F.3d 615, 625 (6th Cir. 2004).

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 Zeito’s claimed error with the IJ’s decision as to his petition for withholding of removal

rested on the same credibility grounds as the asylum claim and involves a more stringent proof

requirement. Because the record and the law supports the IJ’s and BIA’s determination that the

petitioner is not eligible for asylum, he necessarily cannot satisfy the more stringent standard for

withholding of removal. Daneshvar, 355 F.3d at 625.

V.

Department of Homeland Security regulations also provide for judicial review of a BIA

denial of relief under the CAT. See 8 C.F.R. § 208.18(e). However, this court may address only

those claims that have been exhausted administratively. See 8 U.S.C. § 1252(a)(1); Ramani v.

Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004); Perkovic v. I.N.S., 33 F.3d 615, 619 (6th Cir. 1994);

Dokic v. I.N.S., 899 F.2d 530, 532 (6th Cir. 1990). A petitioner fails to exhaust his administrative

remedies when he fails to make arguments to the BIA regarding the proceedings before the IJ or

attacks the opinion the IJ rendered. See Ramani, 378 F.3d at 559.

Zeito did not argue to the BIA that the IJ’s denial of his CAT petition was erroneous. The

only mention of the CAT claim in his brief to the BIA was a recitation of the standards for torture.

Zeito made no argument as to the requirements for making out a CAT claim, nor did he ever argue

that the IJ incorrectly relied on her credibility determination in denying his CAT claim—the

argument he is making in this court. We therefore lack jurisdiction to review the denial of relief

under the CAT.

VI.

Zeito’s final argument is that changed country conditions in Iraq since the proceedings before

the IJ mandate that this court vacate the BIA’s decision and remand the matter to the BIA for further

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proceedings. The government counters that because of the overthrow of the Ba’athist regime,

conditions have changed in Zeito’s favor and Zeito’s request for remand should be denied.

In Visha v. I.N.S., 51 Fed. Appx. 547, #003446 (6th Cir. Nov. 13, 2002) (unpublished), the

petitioner asked this court either to remand his case to the BIA for consideration of additional

evidence of changed country conditions or to take judicial notice of such changed country conditions

and consider the issue itself. Id. at 551. We noted that with the enactment of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Congress abrogated the ability of

an appeals court to remand a case to the BIA for consideration of additional evidence, or to take

judicial notice of such evidence of change, and limited the appeals court’s review to the

administrative record. Id. See also 8 U.S.C. § 1252(b)(4)(A).

Zeito, though not making any real argument as to the mechanism by which this court should

either remand or consider the evidence for the first time on appeal, appears to be making the same

argument made by the petitioner in Vishna. Zeito’s proper recourse, however, is to petition the BIA

to reopen his case under 8 C.F.R. § 1003.2(c). That section provides that the BIA may reopen a

closed proceeding if the petitioner includes with the petition affidavits and the information to be

considered at the reopened proceeding relating to the change in conditions since the BIA originally

considered the claim. See 8 C.F.R. § 1003.2(c)(1). Additionally, the time limitations set forth in

the section do not apply to petitions to reopen due to changed country conditions. See 8 C.F.R. §

1003.2(c)(3)(ii). This process therefore provides Zeito an adequate opportunity to present this

evidence to the BIA.

VII.

For the foregoing reasons, we DENY Zeito’s petition for review.

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