Saah v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0838n.06
Filed: November 15, 2006

No. 05-3872

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

EMMANUEL SAAH, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF AN
) ORDER OF THE BOARD OF
ALBERTO R. GONZALES, ) IMMIGRATION APPEALS
)
Respondent. )
)
)

Before: KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.*

JULIA SMITH GIBBONS, Circuit Judge. Petitioner, Emmanuel Saah, appeals the

decision of the Board of Immigration Appeals (“BIA”) affirming without opinion the decision of the

Immigration Judge (“IJ”) denying Saah’s application for asylum and withholding of removal. For

the reasons below, we affirm the BIA decision.

I.

Saah, a native and citizen of Cameroon, arrived at Dulles Airport on April 22, 2001. On that

day, an immigration inspector for the then-Immigration and Naturalization Service1 interviewed Saah

*
The Honorable Ann Aldrich, United States District Judge for the Northern District of
Ohio, sitting by designation.
1
The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified as
amended in scattered sections of 6 U.S.C.), abolished the INS.

1
concerning his background and the reason for his presence in the United States. Saah represented

to the inspector that he had traveled to the United States to attend a food and safety conference and

had plans to stay in the country for two weeks at the Wardman Park Marriott Hotel. When asked to

explain why the Marriott had no reservation for Saah’s stay and why a hotel employee had informed

the inspector that the conference was over, Saah claimed someone had assured him the reservation

was made. Saah further stated that he had never been arrested anywhere in the world and did not fear

returning to Cameroon.

On April 19, 2002, Saah attempted to file an application for asylum and withholding of

removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158(b) and

1231(b)(3)(A), and for withholding of removal under Article 3 of the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) with

the immigration court in Detroit, Michigan. The INS issued a notice to appear dated August 14,

2002,2 informing Saah that he was subject to removal for being a potential public charge, procuring

admission into the United States by fraud or willful misrepresentation, and lacking valid

documentation permitting him to remain in the United States. The notice directed Saah to appear

before an immigration judge in Arlington, Virginia.3

Saah filed his asylum application with the INS in September 2003.4 Saah represented in his

2
Saah states that he was placed in immigration proceedings by a notice to appear dated
April 6, 2001. Saah does not include a copy of an April 2001 notice in the administrative record,
and the only notice to appear available to us is dated August 14, 2002.
3
The matter was transferred to Detroit, Michigan, following a motion for change of
venue.
4
Saah’s initial attempt to file with the immigration court was in error, as respondent
points out. Asylum applicants are to file with the center servicing the asylum office with

2
asylum application that he belongs to the Southern Cameroon National Council (“SCNC”). As Saah

described the purpose of the SCNC, the organization seeks separation of Cameroon between the

Anglophones residing in the previously British-occupied part of the country and the Francophones

in the part of the country previously colonized by the French.5 Saah claimed that the Cameroonian

government, controlled by the Cameroon People’s Democratic Movement, has resisted division and

that, because he is an active member of the SCNC, his return to Cameroon would result in “torture,

molestation, and violation of [his] human rights, rape, and [being] beaten to death.” AR 361. In his

application, Saah cited as evidence his April 1997 detention and torture at the hands of the

Gendarmarie, a Cameroonian police force with partial responsibility for internal security.

On April 7, 2004, the IJ assigned to Saah’s application held an individual hearing on Saah’s

application. At that hearing, Saah expanded on the information contained in his asylum application,

jurisdiction over the applicant’s place of residence, current lodging, or land border port-of entry
through which the alien seeks admission. 8 C.F.R. § 1208(b)(1). Filing with the immigration
court is appropriate only after exclusion, deportation, or removal proceedings have begun. 8
C.F.R. § 1208.4(b)(3)(i).
5
A State Department report included in the record explains:

The division between Cameroonians along linguistic lines is a remnant of
colonialism. After World War I, a League of Nations mandate partitioned the
German colony of Kamerun . . . between Britain and France. In 1960, French
Cameroon achieved independence after an armed struggle and established the
republic of Cameroon. A year later, the largely Muslim northern half of British
Cameroon voted to join Nigeria while the largely Christian southern half voted to
join with the Republic of Cameroon, forming the Federal Republic of Cameroon,
with each region initially maintaining substantial autonomy. In 1972,
constitutional changes provided for strong central government, thereby ending the
status of the Anglophone region (today’s Northwest and Southwest provinces) as
a federal entity within the Cameroon union.

AR 354-55.

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describing his functions in the SCNC and offering further information on the mistreatment he

claimed to have suffered at the hands of the Cameroonian government. The IJ, by oral decision,

denied the entirety of Saah’s application on the grounds that Saah filed his asylum application after

the one-year deadline and was not credible. Saah appealed the IJ’s decision to the BIA. On June 9,

2005, the BIA issued an order affirming the IJ’s decision without opinion and deeming the IJ

decision the final agency determination. Saah appeals.

II.

Saah begins with a challenge to the streamlined decisionmaking procedures governing

appeals to the BIA. Although Saah’s brief is not entirely clear as to the specific features he wishes

to challenge, he seems to take issue with the one-judge review procedure provided for under 8 C.F.R.

§ 1003.1(e)(3) and the affirmance-without-opinion option provided the BIA under 8 C.F.R. §

1003.1(e)(4). Saah claims that both procedures are violative of asylum petitioners’ right to due

process. We review Saah’s due process claim de novo. See, e.g., Denko v. INS, 351 F.3d 717, 726

(6th Cir. 2003); Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998).

The Sixth Circuit has consistently and definitively rejected Saah’s argument, finding that the

BIA procedures he challenges produce no constitutional injury. See, e.g., Lumaj v. Gonzales, 462

F.3d 574, 576 (6th Cir. 2005) (rejecting petitioner’s claim that single-judge review and clearly

erroneous review standard violated due process); Denko, 351 F.3d at 730 (“[I]t is not a due process

violation for the BIA to affirm the IJ’s decision without issuing an opinion.”) (internal quotation

marks omitted). We therefore hold, as have panels before us, that the BIA’s use of streamlined

decisionmaking procedures does not infringe on a petitioner’s right to due process.

III.

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 Saah also challenges the IJ’s decision to deny his application for asylum on timeliness

grounds. Under the INA, an alien must file his application for asylum within one year after the date

of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). An applicant must provide clear and

convincing evidence that his filing complied with this requirement. Id. The IJ found Saah did not

file his asylum application until September 2003, more than a year after his April 2001 arrival in the

United States and denied the application on that basis.

The Sixth Circuit has held that the statutory provisions governing appellate review of BIA

decisions preclude review of denials of asylum applications for untimeliness where the petitioner

“seeks review of discretionary or factual questions,” rather than constitutional claims or matters of

statutory construction. Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006) (considering the

application of 8 U.S.C. § 1252(a)(2)(D)).6 Saah does not argue that his claims fall within either of

these two exceptions to the general rule that an appellate court may not review a BIA timeliness

decision, and we conclude Saah’s claims do not qualify for review under the statute. We, therefore,

may not and do not consider the propriety of the IJ’s timeliness decision.

IV.

A petitioner who files requests for withholding under the INA and the CAT raises two

distinct claims, subject to separate legal standards. An appellate court reviews the BIA’s decision

on those requests utilizing an identical standard, however. See Almuhtaseb, 453 F.3d at 749.

Administrative findings of fact “are conclusive unless any reasonable adjudicator would be

6
Prior to the adoption of the REAL ID Act of 2005, Pub. L. 109-13, Div. B, 119 Stat. 231
(May 11, 2005), the Sixth Circuit held that federal law prohibited judicial review of timeliness
decisions without regard to the basis of petitioner’s claim on appeal. See Castellano-Chacon v.
INS, 341 F.3d 533, 544 (6th Cir. 2003). In Almuhtaseb, the court modified its holding in
Castellano-Chacon to account for the changes wrought by the Real ID Act. 453 F.3d at 748.

5
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The court must uphold the BIA’s

decision unless it is “manifestly contrary to the law.” Almuhtaseb, 453 F.3d at 749.

The INA prohibits removal of an alien to another country if the Attorney General determines

that the alien’s “life or freedom would be threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §

1231(b)(3). A petitioner must show “a clear probability, that is, that it is more likely than not, that

[he] would be subject to persecution on the basis of one of these five grounds were [he] removed

from this country.” Almuhtaseb, 453 F.3d at 749 (internal quotation marks omitted); see also

Rreshpja v. Gonzales, 420 F.3d 551, 557 (6th Cir. 2005). An applicant who demonstrates that he

has suffered past persecution in the proposed country of removal enjoys a presumption “that the

applicant’s life or freedom would be threatened in the future in the country of removal on the basis

of the original claim.” 8 C.F.R. § 208.16(b)(1)(i).

By contrast, a petitioner seeking withholding of removal under the CAT is not required to

show that any alleged prospective harm is based on one of the protected groupings under the INA.

Almuhtaseb, 453 F.3d at 751; Castellano-Chacon, 341 F.3d at 551. Instead, a petitioner must

demonstrate a “particularized threat of torture.” Id. It must be “more likely than not that he or she

would be tortured if removed to the proposed country of removal.” Rreshpja, 420 F.3d at 557

(quoting 8 C.F.R. § 208.16(c)(2)).

Saah testified to three instances of persecution and torture in Cameroon.7 The first incident

occurred in April 1997, when he was arrested by two members of the Gendarmerie and taken to the

7
Saah testified that other arrests occurred, but could not recall any of the information
relating to those arrests.

6
local police station. Saah stated that during the week he was held, he was interrogated, forced to

strip naked, subjected to increasingly severe beatings, tarred, made to masturbate, and left in a cell

with two feet of standing water. In November 1997, Saah was allegedly taken from his home by four

members of the Gendarmerie and returned to prison where he was subjected to similar acts of

physical abuse. Saah’s November detention lasted for three days according to his account. In April

2000, Saah claimed, he was taken from the fish market in Limbe, his home, and detained for four

months, during which time he was the victim of abuse nearly identical to that he suffered during his

previous detentions. According to Saah, a relative informed him that the Cameroonian government

planned to kill him because of his activities with SCNC. This warning, along with a series of threats

on his life, prompted him to leave Cameroon.

The IJ deemed Saah’s testimony “inherently incredible,” finding it “inconsistent on its face

. . . inconsistent with his application, and . . . diametrically opposed to his statement at the Dulles

Airport . . . .” AR 41. Based upon this adverse credibility finding, the IJ rejected Saah’s request

for withholding under both the INA and the CAT. The IJ identified a series of problems in Saah’s

account of his abuse while in Cameroon that led him to discredit Saah’s claim, noting, first, that

Saah’s statement to the immigration inspector upon his arrival in the United States directly

contradicted his later claim that he had been arrested repeatedly and feared for his life if returned to

Cameroon. When asked about his earlier representations to the immigration inspector, Saah testified

to having no recollection of what transpired at that meeting.

The IJ observed a series of discrepancies in Saah’s report of abuse at the hands of the

Cameroonian government. He could not provide a fixed account of the number of times he was

detained while in Cameroon or the dates of his detention. He also failed to provide a full description

7
in his asylum application of the forms of abuse he suffered and was unable to produce any

documentation confirming the injuries sustained as a result of his time in detention. Finally, Saah

testified that members of the Gendarmerie released him even though, according to his testimony, he

informed them that he would continue his activities with the SCNC. This, the IJ concluded, made

little sense if Saah’s detention was intended to deter further activities on the party’s behalf.

In addition, Saah was unable to produce the originals of any of the documents he produced

as evidence and offered what the IJ deemed to be an unbelievable explanation for this omission.

Saah testified that his car, containing the originals, was stolen the previous evening. Asked about

the circumstances surrounding the robbery, Saah recited a lengthy story, which the IJ ultimately

deemed “completely made up.” AR 44. The IJ refused to admit copies of the materials offered by

Saah on the ground that the documents were “inherently unreliable on their face.” AR 43.

The IJ also found implausible Saah’s claims that the Cameroonian government was out to

harm him. He expressed disbelief that a government Saah claimed was set on killing him would

allow him to continue working for the Cameroonian Development Corporation, an entity partly

owned by the government, following Saah’s arrest. He also discounted Saah’s claim that the

government would kill him upon his arrival in Cameroon, noting that the same government had

permitted Saah to obtain a passport and pass through border control in order to travel to the United

States.

The IJ further noted that Saah fraudulently obtained his visa to travel to the United States and

cited this initial act of dishonesty as evidence of Saah’s tendency to “[tell] some lie in order to get

what he wants . . . .” AR 56. Obviously convinced Saah had contrived nearly all of his testimony,

the IJ refused in the strongest terms to credit Saah’s testimony and, on that ground, denied his

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requests for withholding of removal under the INA and the CAT.

Credibility decisions by an IJ are factual findings for appellate review purposes, and a

reviewing court must determine whether substantial evidence supports the IJ’s findings of fact. Bah

v. Gonzales, 462 F.3d 637, 640 (6th Cir. 2006); Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004).

“While an adverse credibility finding is afforded substantial deference, the finding must be supported

by specific reasons.” Id. at 926. Any inconsistencies in an applicant’s representations must “go to

the heart of the applicant’s claim.” Id. “If discrepancies cannot be viewed as attempts by the

applicant to enhance his claims of persecution, they have no bearing on credibility.” Id. (internal

quotation marks and citation omitted).

Saah’s brief offers no substantive response to the inconsistencies relied upon by the IJ in

making his decision. We note, however, that the IJ likely placed undue weight upon certain

problems with Saah’s testimony. For instance, the Sixth Circuit has dismissed the significance of

inconsistencies in dates provided by an applicant where they are unrelated to an applicant’s claims

of persecution. See Yu v. Ashcroft, 364 F.3d 700, 704 (6th Cir. 2004). Similarly, the court has

suggested that initial airport interviews with immigration personnel constitute questionable

impeachment materials because of the translation problems attending attempts to interview

individuals upon their arrival in the United States. See id. at 703 n.4.

Those flaws in the IJ’s analysis notwithstanding, we are bound to uphold a BIA credibility

assessment unless the evidence compels a different result. Cf. Syllva, 388 F.3d at 925 (“A reviewing

court should not reverse simply because it is convinced that it would have decided the case

differently.”) (internal quotation marks omitted). While the inconsistencies identified by the IJ

might not, standing alone, warrant affirmance of the BIA decision, they collectively provide a

9
sufficient ground to question the veracity of Saah’s claims of persecution and imminent harm. See

Bah, 462 F.3d at 642 (holding that even though IJ’s adverse credibility determination was not based

on “overwhelming evidence,” where petitioner failed to demonstrate that evidence required contrary

result, court would affirm BIA decision); Yu, 364 F.3d at 704 (noting that “cumulative effect” of

minor inconsistencies supported IJ’s other grounds for denial of asylum). The IJ finding was not so

erroneous that it compels a contrary conclusion, and, for that reason, we will not disturb the decision

of the BIA to uphold the IJ’s ruling.

V.

For the foregoing reasons, we affirm the decision of the BIA denying Saah’s application for

asylum and requests for withholding of removal.

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