Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-7-2004
Rachid v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3613
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3613
BILAL RACHID,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES
Appeal from the Board of Immigration Appeals
(BIA No. A77-027-869)
Argued: September 16, 2003
Before: McKEE, SMITH, and COWEN, Circuit Judges.
(Filed: April 7, 2004)
TIMOTHY R. BLOCK, ESQ. (Argued)
LAURA ADJANGBA, ESQ.
Legal Services of New Jersey
100 Metroplex Drive, Suite 402
Edison, NJ 08818
Attorney for Appellant
ROBERT D. McCALLUM, JR., ESQ.
Assistant Attorney General
MARK C. WALTERS, ESQ.
Assistant Director
WILLIAM C. MINICK, ESQ.
TERRI J. SCADRON, ESQ.
MARY JANE CANDAUX (Argued)
Senior Litigation Counsel
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Attorneys for Appellees
OPINION
McKEE, Circuit Judge.
Bilal Rachid appeals the BIA’s decision affirming the denial of his applications for
asylum, withholding of removal and relief under the Convention Against Torture. For the
reasons that follow, we will affirm.
I.
Rachid arrived in this country on May 4, 1998 without any travel documents. He
claimed to be an Algerian national and he was seeking political asylum. App. at 169a. He
was immediately detained by the INS and interviewed. App. at 169a. During the
interview, he stated that he fled Algeria because he was afraid he would be killed after his
brothers were killed in the middle of the night by government soldiers. App.at 172a, 174a.
The INS interviewed Rachid again on May 15. App. at 162a-67a. During the second
interview, Rachid again stated that he was afraid to go back to Algeria due to the civil
war there and his brothers’ shooting. App. at 169a. He also responded “no” to questions
about whether he had ever been threatened, arrested or detained; had encountered
problems with the police or military; or was ever mistreated, abused or tortured. App. at
164a-65a. His case was then referred for a hearing to see if he qualified for asylum under
2
8 U.S.C. § 1158.1 App. at 167a-68a.
On May 28, Rachid appeared pro se at his asylum hearing and withdrew his
asylum application. App. at 152a-53a. In September, he attempted to reinstate his asylum
application by submitting a written asylum application. App. at 150a. The attempt met
with no success. However, a year and a half later, his asylum application was reinstated
with the help of counsel, and Rachid submitted a second written asylum application. App.
at 133a-34a, 138a-39a. In that petition, he stated for the first time that the Algerian police
had accused him of belonging to the Islamic Salvation Front (“FIS”); that the police had
arrested him three times; and that they had jailed, beat, starved and tortured him for days
following his arrest. App. at 133a-34a. He requested asylum, withholding of removal, or
withholding of removal and relief under the United Nations Convention Against Torture
(“CAT”). App. at 3a.
Rachid had his second hearing before an IJ in July 2001. App. at 36a. At the
hearing, Rachid testified that the Algerian military police arrested him three times in
1
8 U.S.C. § 1158(b)(1) (2004) states that IJs should grant applicants asylum as a
matter of discretion based on whether the applicant proves he/she meets the definition of
“refugee” under 8 U.S.C. § 1101(a)(42)(A) (2004). See Abdille v. Ashcroft, 242 F.3d 477,
482 (3d Cir. 2001).
Section 1101(a)(42)(A) defines a refugee as:
any person who is outside any country of such person’s nationality. . . who
is unable or unwilling to avail himself or herself of the protection of that
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. . . .
3
February, June and August 1995, and that the police beat and tortured him using electric
shocks while he was detained. App. at 46a-57a. He also testified that the police
interrogated him regarding his connections with FIS the first and third times he was
arrested. App. at 49a, 56a. Rachid claimed that he did not tell his entire story during his
first two INS interviews because he was frightened, and that he did not trust the person
who helped him complete his first written asylum application enough to tell that person
about his arrests and torture. App. at 66a, 77a-78a, 81a-82a. He also submitted the
affidavit of a doctor who examined him, David S. Kang, M.D., which stated that his scars
were clearly indicative of torture. App. at 107a-10a.
The IJ denied Rachid any relief. He denied Rachid asylum because he found that
Rachid’s testimony regarding his arrests and torture was unbelievable. R. at 18a. He
found Rachid’s excuses for his failure to mention these things during his first two
interviews and in his first written asylum application were implausible, concluding that
“at some point [Rachid] decided to embellish his story, particularly the arrests. What we
have is, in my opinion, a recent fabrication of a story.” R. at 17a. The IJ then found that
Rachid’s consistent story about his brothers being killed did not make out his asylum
claim, either. App. at 17a-18a. He also refused to grant Rachid withholding of removal,
stating that withholding required Rachid to meet a higher standard of proof than granting
asylum did. R. at 18a-19a.
The Board of Immigration Appeals (BIA) affirmed the IJ’s decision. It agreed
4
with the IJ that “contradictions, addressed in detail in his decision, were not resolved by
the applicant, either during the proceedings or on appeal.” R. at 2a. Rachid timely filed
this petition, requesting review of the BIA’s decision to affirm the order of removal
against him.
II.
Rachid raises three arguments before this court. 2 First, he argues that the IJ should
not have found his later story about being arrested and tortured unbelievable because this
Court has recognized that an alien’s fear can explain differences between the story the
alien tells upon arrival and the story he/she tells later. Second, he argues that the IJ
should have accounted for the medical evidence of his torture when the IJ analyzed his
asylum claim. Finally, he argues that the IJ should have granted his petitions for
withholding of removal generally or withholding of removal under the Convention
Against Torture (CAT). We address these issues seriatim.
A.
2
We have the authority to review the BIA’s decision to affirm an order of removal
under 8 U.S.C. § 1252(b) (2004). Because the BIA adopted the IJ’s decision, we review
the IJ’s administrative findings of fact for substantial evidence. See Abdulai v. Ashcroft,
239 F.3d 542, 549 n.2 (3d Cir. 2001). Such review requires us to treat the IJ’s findings as
“conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d
Cir. 2003) (internal citation omitted). However, even under this deferential standard of
review, an IJ must offer “specific, cogent reasons for his or her disbelief” when rejecting
a witness’s positive testimony because in his or her judgment it lacks credibility in order
for his/her rejection of such testimony to be supported by substantial evidence.
Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) (internal citation omitted).
5
Rachid states that the IJ erred in making an adverse credibility determination
against him due to his failure to mention his arrests and torture in his first two INS
interviews and in his first written asylum application. He argues that this was error
because Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998), holds that inconsistencies
between the story an alien initially tells and the story he/she tells later is not enough to
discount the alien’s testimony.
We disagree. Upon his arrival in the U.S., Balasubramanrim was immediately
detained and interviewed in English, a language in which he did not have good
competency. During the interview, he was asked whether he had been arrested or tortured
and responded only that his brother had been arrested. He subsequently described
mistreatment at the hands of his home country’s government and a rebel group within the
country in a written asylum application, and testified to the same matters in his first
hearing in front of an immigration judge. Id. at 158-60. The IJ denied Balasubramanrim’s
application, finding the petitioner’s later statements unbelievable because he had told the
officers at the airport that he had never been arrested. Id. at 160. The BIA affirmed. Id. at
161.
Subsequently, this Court found that the IJ and BIA placed undue reliance on the
airport interview. Id. at 162. We stated that an arriving alien who has suffered abuse
during interrogation by government officials in his home country may be reluctant to
reveal such information during the first meeting with government officials in this country.
6
Id. at 163. We then held that “some inconsistencies between the airport statement and
[the petitioner’s] testimony before the immigration judge [were] not sufficient, standing
alone, to support the Board’s finding that [the petitioner] was not credible.” Id. at 164.
It is clear that there were more than just a few inconsistencies between the airport
statement and the petitioner’s testimony in the case at hand, though, giving the IJ
appropriate grounds to distinguish Rachid’s situation from Balasubramanrim.3 The IJ’s
decision notes that, unlike Balasubramanrim, Rachid repeated that he had not been
arrested or tortured in response to direct questions in a lengthier interview 10 days after
the initial airport interview and in his first written asylum application submitted several
months after the initial interview. He also notes that the cases can be distinguished
because Rachid’s airport interview was conducted in a language, French, in which
Rachid’s competency is uncontested. These are significant differences between the two
cases that allowed the IJ to distinguish them and find that Rachid’s inconsistent testimony
was unbelievable. We will affirm the IJ’s rejection of Rachid’s testimony that he was
tortured and arrested.
B.
3
The IJ does not actually name Balasubramanrim but states enough details about
the case that it is clear he is referring to it: “[T]his Court is mindful of the Sri Lanka case .
. . in which the 3rd Circuit. . . has advised Immigration Judge’s (sic) to be very careful
concerning airport, or in this case airport and seaport statements. . . .[T]hat case involved
a Sri Lankan where the statement was taken in English, not the language of the
respondent.” R. at 14a.
7
Rachid’s final argument is that the IJ’s decision should have addressed the medical
evidence because it establishes that he was tortured, and his torture establishes that he
was persecuted such that he is eligible for asylum.4
The medical evidence at issue is the affidavit of David S. Kang, M.D., that Rachid
submitted to the IJ at his second hearing. In this affidavit, Dr. Kang concludes that
Rachid had been a victim of torture because Rachid’s explanations of scars and injuries
were consistent with his physical findings. The IJ’s decision refers to Dr. Kang’s
testimony once, stating that Rachid was “examined by a Dr. Khan (sic) who he spent an
hour and a half with and told him the story as to what happened to him in Algeria
concerning the arrests, the beating and the killing of his brothers and his flight into the
United States. The doctor’s report was admitted into evidence.” R. at 10a.
This court has found that an affidavit reporting that an examination of an asylum
applicant indicated torture is “powerful evidence.” Obianuju Ezeagwuna v. Ashcroft, 301
F.3d 116, 132 (3d Cir. 2002). Even such important evidence can not help Rachid here,
however. The IJ’s decision not to grant asylum was based on his finding that the
petitioner’s later testimony/application was inconsistent with his earlier ones, and the
doctor’s opinion does not determine whether Rachid’s later allegations of torture at the
hands of government soldiers were true or false. Dr. Kang does not try to pinpoint when
4
We noted in Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993), that the BIA has
said that torture can establish the persecution necessary to receive asylum.
8
in time the torture occurred or at whose hands it happened; his testimony leaves open the
possibility that Rachid was tortured this way but not under the circumstances he
described. Because the doctor’s affidavit does not compel a different conclusion than the
one the IJ reached, we can not overturn the IJ’s findings that the petitioner was ineligible
for asylum.
C.
Rachid also argues that the IJ should have found him eligible for withholding of
removal. He states that he meets the criteria for withholding of removal generally
because he has established that he suffered past persecution and will suffer future
persecution due to his political opinion, and for withholding of removal under CAT
because he established that he was tortured. He asked this Court to reverse the IJ’s
decision and enter an order prohibiting his removal.
The IJ explains his decision to deny withholding of removal, albeit briefly. After
stating that Rachid was not eligible for asylum, he states:
Since withholding of removal is a higher standard, I must deny that, as well.
Since I do not believe his testimony concerning his arrests, the mere fact
that he may have been in the cross fire, an innocent family in a civil war,
does not lead me to believe that he would be tortured if he returned to
Algeria. He has not convinced me that the government of Algeria or its
agents would be interested in him since I have not found him credible. I
will deny that application as well.
R. at 18a-19a. In summary, the IJ denies withholding of removal because he finds that
Rachid can not be eligible for such relief if Rachid could not meet the lower standard for
9
asylum eligibility.
We agree with the ALJ that Rachid could not meet the standards for withholding
of removal or CAT relief if he did not meet the criteria for asylum. To be granted asylum,
a petitioner must prove only that he/she has 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. § 1158. Such a fear of persecution can be well-founded even when there is less
than a 50 percent chance of the occurrence taking place. Lin v. INS, 238 F.3d 239, 244
(3d Cir. 2001). But he must prove that he faces a “clear probability of harm” upon return
to his home country to qualify for withholding of deportation, Chang v. INS, 119 F.3d
1055, 1065-66 (3d Cir. 1997); this standard requires him to establish at least a 51 percent
chance of harm. Similarly, the standard to establish eligibility for CAT relief requires
Rachid to prove by a preponderance of the evidence that he would be subject to torture
upon return to his home country. 8 C.F.R. § 208.16(c) (2004). Because it is more difficult
to establish eligibility for withholding of removal generally and CAT relief than to
establish eligibility for asylum, no one ineligible for asylum could possibly be eligible for
withholding of removal under either test.
IV.
For the above reasons, we will affirm the district court.
10