Aw v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0215n.06
Filed: March 29, 2006

No. 04-3517

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

AMADOU AW, )
)
Petitioner, )
) ON PETITION FOR REVIEW FROM THE
v. ) BOARD OF IMMIGRATION APPEALS
)
ALBERTO GONZALES, United States )
Attorney General, )
)
Respondent.

Before: KENNEDY, MOORE and SUTTON, Circuit Judges.

SUTTON, Circuit Judge. Amadou Aw, an ethnic Fulani and a citizen of Mauritania, appeals

the denial of his application for asylum and withholding of removal. The Immigration Judge (IJ)

found his testimony incredible and denied his application. The Board of Immigration Appeals (BIA)

affirmed the IJ’s decision without opinion. Because substantial evidence supports the IJ’s decision,

we deny Aw’s petition for review.

I.

Born in Mauritania in 1952, Aw grew up in a small village where he worked on his family’s

farm. As a young adult, Aw moved to Nouakchott, the capital of Mauritania, where he earned a

living buying and selling clothing. In early 1986, Aw testified, he received a message from his
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Aw v. Gonzales

father instructing him to return to the family’s village, and after traveling six hours by car to reach

the village, he discovered “military soldiers” “confiscating” his family’s land “by [ ] order of the

government.” JA 123–24. According to Aw’s testimony, the soldiers claimed that the land did not

belong to “black people” but instead belonged to “all of us.” JA 124. Aw informed the soldiers that

the land belonged to his father, who had lived there his entire life and who had inherited the land

from Aw’s grandfather. The soldiers, Aw’s testimony continued, beat him in front of the other

villagers, tied him up and transported him to a prison in another town. Aw testified that while in

prison he was placed in a “tiny room” where he was beaten for most of the day and had cold water

thrown on him every morning. JA 124. He was released after approximately one week of

incarceration.

Aw further testified that when he returned to his village he found that his family had been

forced across the border to Jung, Senegal. On May 2, 1986, he traveled to Jung, where he found his

family staying “in somebody’s house,” JA 136, living in what he described as “not a pleasant

situation,” JA 126. His 80-year-old father, he learned, had died during the family’s forced removal.

While attempting to cross a river on the way to Jung, his father had fallen into the river and

swallowed a great deal of river water, which caused him to become ill and eventually to die two days

later. Aw testified that before the forced removal his sister had been raped and had become

pregnant.

Aw testified that he stayed with his family for a little over two weeks before leaving for

Dakar, Senegal, where he found work selling “little stuff.” JA 127. After spending six to eight

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months in Dakar, he paid 500,000 francs to travel on a ship bound for the United States. After a

four-month journey, he arrived in Miami, Florida on August 6, 1988.

Aw submitted two applications for asylum and withholding of removal—one in 1991 and

one in 1997. On September 30, 1991, he submitted a hand-written application that is at odds with

his testimony before the IJ and the information contained in his 1997 application. On the 1991

application form, for example, Aw checked “no” in response to a question asking if he had ever been

detained, interrogated, convicted and sentenced, or imprisoned in any country. JA 407. And he

checked neither “yes” nor “no” in response to a question asking if he “or any member of [his]

immediate family” had “ever been mistreated by the authorities,” although he did check boxes

marked “race” and “political opinion” as possible reasons for mistreatment. Id. The 1991

application contains no mention of any mistreatment that he or his family suffered at the hands of

the government.

On August 13, 1997, Aw submitted another application. The second application was

inconsistent with the 1991 application and contains some inconsistencies with his testimony before

the IJ.

After hearing Aw’s testimony on July 30, 1998, the IJ denied Aw’s application without

explicitly ruling on Aw’s credibility. Aw appealed, and the BIA remanded, asking the IJ to make

a finding about Aw’s credibility.

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On October 1, 2002, the same IJ reviewed the transcript from the earlier hearing and

concluded that Aw’s “testimony [was] not worthy of belief,” IJ Op. at 11, and that the

“inconsistencies” in the record “cast doubt upon [Aw’s] entire testimony,” making it “very difficult,

if not impossible,” to assess which aspects of the testimony were true and which were false, id. at 8.

Noting that Aw had not produced any evidence corroborating his story, the IJ found Aw incredible

and once again denied his application. Id. at 11. Invoking its streamlining procedures, the BIA

affirmed without opinion.

II.

To establish eligibility for asylum, an applicant must show that he is a “refugee,” see 8

U.S.C. § 1158(b), which means he is “unable or unwilling to return to . . . [his] country because of

persecution or a well-founded fear of persecution on account of [his] race, religion, nationality,

membership in a particular social group, or political opinion,” id. § 1101(a)(42)(A). An applicant’s

testimony, “if credible, may be sufficient to sustain [his] burden of proof without corroboration.”

8 C.F.R. § 1208.13(a).

Because the BIA affirmed the IJ’s finding without issuing a separate opinion, we review the

IJ’s opinion, Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003), to determine whether it is supported

by substantial evidence, Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004). As a finding of fact, the

IJ’s credibility determination must be upheld unless any “reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Yu, 364 F.3d at 703.

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At the same time, an IJ’s credibility finding “must be supported by specific reasons” relating to

“issues that go to the heart of the applicant’s claim.” Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004);

see also Daneshvar v. Ashcroft, 355 F.3d 615, 623 n.7 (6th Cir. 2004). “[I]rrelevant inconsistencies”

and discrepancies that “cannot be viewed as attempts . . . to enhance [the applicant’s] claims of

persecution [ ] have no bearing on [his] credibility.” Sylla, 388 F.3d at 926 (internal quotation marks

omitted). The “cumulative effect” of a series of minor inconsistencies may “give[] support to the

other grounds” for an adverse credibility finding. Yu, 364 F.3d at 703–04; see also Abbo v.

Gonzales, No. 04-3303, 2005 U.S. App. LEXIS 22805, at *12 (6th Cir. Oct. 19, 2005). “Like

affirmative inconsistencies, omissions may [also] form the basis of an adverse credibility

determination, provided that they are substantially related to the asylum claim.” Liti v. Gonzales,

411 F.3d 631, 637 (6th Cir. 2005).

Aw argues that the IJ committed “a harmful and material error” by discrediting his testimony

on the basis of “minor and immaterial” inconsistencies and that the IJ’s adverse credibility finding

is not supported by substantial evidence in the record. Aw Br. at 8. Some of the inconsistencies and

omissions identified by the IJ, it is true, do not involve “issues that go to the heart of [Aw’s] claim,”

Sylla, 388 F.3d at 926, and thus do not support the adverse credibility finding. For example, Aw’s

initial application indicated that he left Mauritania in April 1986 yet he testified that he left the

country in May 1986, IJ Op. at 8; his initial application indicated that he was a tailor yet he testified

that he sold children’s clothes and did not work on clothes, id. at 8–9; and he could not recall the

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name of the ship on which he spent four months at sea and claimed he was given a uniform from the

ship’s captain yet could not recall the captain’s name, id. at 10.

But other inconsistencies and omissions go to the heart of his claim and in the end support

the IJ’s adverse credibility determination. Perhaps the most glaring inconsistency stems from the

gap between Aw’s 1991 application (stating that he had never been detained, interrogated,

convicted, sentenced or imprisoned) and his 1997 application and testimony before the IJ (stating

that he had been imprisoned for a week). Because the events surrounding Aw’s alleged

incarceration lie at the heart of his claim for asylum, the IJ justifiedly viewed the difference between

the 1991 application on the one hand and the 1997 application and testimony before the IJ on the

other as an improper attempt by Aw to “enhance his claims of persecution.” Sylla, 388 F.3d at 926

(internal quotation marks omitted). Compare, e.g., Koxha v. Gonzales, No. 05-3178, 2006 WL

348129, at *2 (6th Cir. Feb. 14, 2006) (finding that inconsistencies between two applications and

testimony before the IJ as well as omissions in application materials supported adverse credibility

finding) and Dosa v. Gonzales, No. 03-4323, 2005 WL 2108537, at *2–3 (6th Cir. Sept. 1, 2005)

(finding that inconsistencies between application and testimony as well as omission of important

detail supported adverse credibility finding) with Abbo, 2005 U.S. App. LEXIS 22805, at *19–23

(finding that inconsistency in applicant’s testimony and omissions in his application did not amount

to substantial evidence in support of an adverse credibility finding where the omissions and

inconsistency were “more apparent than real and [were] [ ] technical and minor in nature”) and

Nwakanma v. Gonzales, No. 03-4317, 2005 WL 697074, at *2–3 (6th Cir. Mar. 25, 2005) (finding

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that inconsistencies and omissions in applicant’s testimony were not substantial evidence in support

of an adverse credibility finding because many of the labeled inconsistencies were not actually

inconsistent and the omissions and remaining inconsistencies did not “go to the heart of the

applicant’s claim”) (internal quotation marks omitted).

Also supporting the IJ’s finding were inconsistencies between Aw’s 1997 application and

his testimony, as well as omissions in his 1991 application. Aw stated in his 1997 application, for

instance, that when he traveled to Senegal to look for his family, he found them in a refugee camp

in N’dioum and that he “stayed at N’dioum for a few months.” JA 288. Aw contradicted this

version of events in his testimony (and in an affidavit filed on March 3, 1998) when he stated that

his family had not been held in a refugee camp and that the refugee camps in N’Dioum were not

created until 1989. JA 276. Making matters worse, Aw’s 1991 application omitted significant

events featured in his 1997 application and testimony: his confrontation with the authorities at the

family farm; his incarceration by the authorities; his family’s forced exodus to Senegal; his father’s

death; and the rape of his sister.

Nor can Aw sidestep the consequences of these omissions and inconsistencies by blaming

others who helped to prepare the documents. He blamed the inconsistencies between his 1997

application and his testimony on his lawyer, see JA 140 (explaining an inconsistency in his

application by stating that “maybe the person who wrote the application put it” in), and asserts that

he paid someone to fill out his initial 1991 “application for him, and [that he] did not know the

contents of” it, Aw Br. at 13. Aw does not contest, however, that he freely signed both applications

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and that his signature on each amounts to a declaration under penalty of perjury that the application

is “true and correct to the best of [his] knowledge and belief.” JA 408; see also Ahmed v. Ashcroft,

No. 02-3757, 2004 U.S. App. LEXIS 397, at *3–6 (6th Cir. Jan. 7, 2004) (stating that where asylum

applicant’s friend filled out his application and applicant “did not ask . . . what was on the

application” but “just signed it,” the IJ’s adverse credibility finding based on the inconsistent

application was appropriate).

In the final analysis, substantial evidence supports the IJ’s adverse credibility determination.

And because Aw has “failed to establish eligibility for asylum, he [also] cannot satisfy the more

stringent standards necessary” to qualify “for withholding of removal.” Hassan v. Gonzales, 403

F.3d 429, 435 (6th Cir. 2005). Aw’s request for withholding of removal necessarily must be rejected

as well.

Aw, lastly, argues that the BIA abused its discretion in invoking its streamlining procedures

and affirming the IJ’s decision without opinion. As he sees it, the BIA’s “use of the affirmance

without opinion procedure was not appropriate” because the IJ “harmfully and materially erred in

determining that [ ] Aw was not credible.” Aw Br. at 8. The government responds that the courts

of appeals do not have jurisdiction to review the BIA’s implementation of its own streamlining

procedure. Resp. Br. at 22 n.3. We need not resolve the government’s jurisdictional defense,

however, because no abuse of discretion occurred here. As we have said (and done) on many

occasions before, see, e.g., Hassan, 403 F.3d at 438; Denko, 351 F.3d at 731–32; Kacaj v. Gonzales,

No. 04-3054, 2005 WL 1285654, at *5 (6th Cir. May 17, 2005); cf. Tapucu v. Gonzales, 399 F.3d

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736, 743 (6th Cir. 2005); Zheng v. Ashcroft, No. 03-3184, 2004 WL 2940883, at *2 (6th Cir. Dec.

20, 2004), we need not address this defense where “‘the facts and legal issues’ of the case fit ‘well

within the boundaries’ of the [BIA]’s summary-affirmance authority, and accordingly the [BIA] did

not err in invoking the streamlining procedure,” Kacaj, 2005 WL 1285654, at *5 (quoting Denko,

351 F.3d at 732); see also 8 C.F.R. § 1003.1(e)(4)(i) (permitting affirmance without opinion when

“the result reached in the decision under review was correct” and the “issues on appeal are squarely

controlled” by settled precedent).

III.

For these reasons, we deny the petition for review.

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