Bahta v. Lynch

United States Court of Appeals
For the First Circuit

No. 14-1995

YORDANOS ARAYA BAHTA,

Petitioner,

v.

LORETTA E. LYNCH,
Attorney General of the United States,*

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Thompson, Selya, and Lipez
Circuit Judges.

Derege B. Demissie and Demissie & Church on brief for
petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, John S. Hogan, Assistant Director, Office
of Immigration Litigation, and Andrea N. Gevas, Trial Attorney,
Office of Immigration Litigation, U.S. Department of Justice, on
brief for respondent.

August 24, 2016

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch has been substituted for former
Attorney General Eric H. Holder, Jr., as the respondent.
 LIPEZ, Circuit Judge. Petitioner Yordanos Araya Bahta,

a native and citizen of Eritrea, seeks review of a final order of

the Board of Immigration Appeals ("BIA") denying her application

for asylum, withholding of removal, and protection under the

Convention Against Torture ("CAT"). An immigration judge ("IJ")

ordered Bahta's removal to her homeland after concluding that Bahta

failed to remedy credibility problems in her testimony with

persuasive corroborating evidence. The BIA affirmed this

decision. Bahta asserts that the IJ and BIA erred, inter alia,

in holding that her application was not adequately supported and

relying on evidence outside the record. Finding these contentions

unavailing, we deny the petition for review.

I.

On February 11, 2009, Bahta entered the United States on

a nonimmigrant visa. She was authorized to remain in the country

until May 10, but stayed beyond that date. In October 2009, Bahta

filed an application for asylum, withholding of removal, and

protection under the CAT, claiming that she was persecuted in

Eritrea because of her Pentecostal faith.1 In March 2010, Bahta

was served with a Notice to Appear charging her with removability

1 Bahta's application also asserted membership in a particular
social group as a basis for relief, but the IJ deemed that ground
"not cognizable" because Bahta did not specify the particular group
to which she belonged. Bahta does not address the social group
variation of her claim in her petition for review, and we therefore
deem it waived.

2
as an alien present in the United States beyond the time

authorized. See 8 U.S.C. § 1227(a)(1)(B). She conceded

removability, and a merits hearing was held in February 2013 on

her petition for relief. Bahta was the only witness, and she

provided the following account of her religious persecution.2

In 1997, while Bahta was serving in the Eritrean

military, a friend, Rosina Hadush, introduced her to the

Pentecostal religion. Bahta converted and, in 1998, became a

member of the Emmanuel Pentecostal Church in Asmara, the city where

she lived. Bahta reported that members of the army were not

allowed to follow the Pentecostal religion because the Eritrean

government objected to it. Her superior officer reprimanded her

for reading the Bible during her breaks, told her to stop doing

so, and ordered her to attend Orthodox Church services. In her

affidavit, Bahta states that the officer warned her that "it would

be his duty to arrest me or otherwise punish me if he saw me again

reading the bible or heard me invite anyone to come to church with

me."

After Bahta left the military in 2002, her continued

Bahta's testimony repeated in abbreviated form the more
2

detailed account of her experiences presented in an eleven-page
affidavit submitted with her asylum application. Among other
information, the affidavit included observations about the
Eritrean government's hostility toward religions other than "the
officially sanctioned Orthodox or Catholic churches" and describes
the government's particular opposition to the Pentecostal Church.

3
participation in the Pentecostal Church led to two arrests. In

2003, she and others attending a prayer session at her friend's

home were arrested and taken to the police station, where she and

ten to fifteen persons, including other Pentecostals, were held in

a small, metal cargo container for seven days. They were given

only bread to eat and were allowed out of the container twice a

day to use the restroom. Upon her release, Bahta was told that

if she continued practicing her religion, she would be taken to

the battlefront and killed. She thereafter practiced her religion

in secret at her friend's house.

In 2008, Bahta again was arrested, this time while

delivering food and clothing to an imprisoned Pentecostal pastor,

and detained for two days along with four other people. As a

condition of release, she was ordered to report monthly to the

police station. Shortly after this second arrest, Bahta's aunt,

who lives in Saudi Arabia, secured a worker visa that enabled Bahta

to go there and obtain a job as a babysitter.

In February 2009, Bahta accompanied her employers to the

United States on a tourist visa that the employers arranged for

her, traveling from Saudi Arabia to Washington, D.C. In her

affidavit, Bahta stated that she attended church while in

Washington and, for the first time in years, "prayed without

looking over my shoulders in fear of being arrested." She became

concerned about returning to Saudi Arabia and, on the advice of an

4
Ethiopian woman whom she met at the hotel, called a distant

relative in Boston who urged her to travel to that city by bus.

In early March, roughly two weeks after Bahta arrived in

Washington, the Ethiopian woman took Bahta to the bus. Although

Bahta asked her employers for her passport before she traveled,

they refused to give it to her until she returned with them to

Saudi Arabia. In Boston, she regularly attended the Ethiopian

Evangelical Church, which she described as the local branch of the

Pentecostal Church of Ethiopia.

Bahta's testimony was supplemented by various documents:

the asylum application itself, with its accompanying affidavit; a

photocopy of her United States visa showing her employment as a

"personal or domestic employee" of the Saudi family; country

conditions reports and articles describing the treatment of

religious minorities in Eritrea; hand-dated photographs of her

family in Eritrea; translated letters from her mother and the

friend whom Bahta said had influenced her to convert to the

Pentecostal religion; and a letter from the pastor of her Boston

church.

In an oral ruling announced at the conclusion of the

merits hearing, the IJ expressed "serious doubts" about Bahta's

credibility and highlighted two discrepancies arising from Bahta's

testimony. First, Bahta's asylum application stated that she

entered the United States in Boston, although she testified that

5
she came with her Saudi employers to Washington, D.C., and later

traveled to Boston.3 The IJ also questioned the timing of Bahta's

move from Eritrea to Saudi Arabia, reviewing, in detail, an

exchange that took place between Bahta and the representative of

the Department of Homeland Security ("DHS") during cross-

examination. Bahta was asked if the visa application completed

by her employers stated that she had been their babysitter in Saudi

Arabia for five years -- timing that would have overlapped with

her reported arrest in Eritrea in 2008. Bahta responded, "That

might be true, because they did everything." After stating that

Bahta's explanation for the discrepancy "was not clear to the

Court," the IJ went on to note that "the respondent did not

emphatically deny that she had worked for this family in Saudi

Arabia for five years."

Although the IJ refrained from making an explicit

adverse credibility finding regarding Bahta's testimony, the judge

examined whether Bahta's supporting documents provided

"corroborating, objective, credible evidence to rehabilitate [her]

testimony," and concluded that the submissions fell short. The

IJ stated that Bahta "offered no proof other than her own self-

serving testimony that she was in Eritrea between 2004 and 2009[,]

. . . and specifically in 2008 when she is alleged to have been

3Her affidavit, however, detailed her arrival in Washington
and subsequent travel to Boston.

6
arrested for the second time." The IJ discounted the family

photographs as evidence of Bahta's presence in Eritrea at the

relevant time because there was no foundation provided for the

handwritten dates on them.

Further, the IJ noted that Bahta had not provided "any

credible objective evidence that she actually was a member of the

Pentecostal Church in Eritrea." Acknowledging Bahta's testimony

that she could not get letters from the church because it had been

closed by the government, the IJ questioned Bahta's failure "to

obtain letters from any individuals or the testimony of any

witnesses." The IJ also noted the absence of testimony or a letter

from the relative in Boston whom Bahta said she contacted after

she arrived in Washington. As for the country conditions reports,

the IJ stated that "none of them mention the targeting of

Pentecostals by the government for persecution."4 The IJ thus

concluded that Bahta had not met her burden to prove eligibility

for any form of relief from removal.

Bahta appealed to the BIA. In an opinion that expressly

adopted and affirmed the IJ's conclusion, the BIA addressed in

4The IJ recognized that "Eritrea is not a bastion of
religious freedom," but found that Bahta had not "met her burden
of proof that she would be targeted by the government if she
returned to Eritrea in 2013." The IJ also viewed the country
conditions reports as not controlling "[i]n any event, because the
respondent has not even established to the satisfaction of the
Court that she is in fact a Pentecostal."

7
some detail Bahta's evidence and her claims of error by the IJ.

The Board challenged Bahta's assertion that the inconsistency

concerning her arrival city was the product of "a simple clerical

mistake," noting that -- contrary to her testimony -- her asylum

application "clearly indicates she arrived in Boston" and that she

"swore that the contents of her asylum application were true."

The BIA also rebuffed Bahta's complaint that the DHS improperly

relied on her visa application, which was not in the record, to

ask about the duration of her employment in Saudi Arabia. The

Board observed that Bahta bore the burden of proof in the

proceedings, but had produced no corroborating evidence concerning

the length of her employment.

The BIA thus upheld the IJ's determination that Bahta

"did not provide or adequately explain her failure to produce

corroborative evidence," and concluded that, "[i]n the absence of

adequate testimony and documentary support, the respondent cannot

establish her eligibility for asylum or withholding of removal."

The BIA also agreed that Bahta was not eligible for CAT relief.

Accordingly, her appeal was dismissed.

Bahta timely filed a petition for review in this court,

arguing that the decisions of the IJ and BIA were not supported by

the record. In particular, Bahta asserts that the agency

adjudicators erroneously found material inconsistencies in the

evidence she presented and violated her due process rights by

8
considering her visa application.

II.

A. Standard of Review

When the BIA adopts and affirms the findings of the IJ,

and also engages in its own discussion of the rationales supporting

the IJ's determination, we review both the BIA's and IJ's

decisions. Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir.

2014); see also Xian Tong Dong v. Holder, 696 F.3d 121, 123 (1st

Cir. 2012) ("[W]here, as here, the BIA accepts the IJ's findings

and reasoning yet adds its own gloss, we review the two decisions

as a unit."). Our role is to determine whether the agency's ruling

is supported by substantial evidence in the record. See Ordonez-

Quino, 760 F.3d at 87; Ivanov v. Holder, 736 F.3d 5, 11 (1st Cir.

2013). Under that deferential standard, "barring an error of law,

we reverse 'only if the record is such as to compel a reasonable

factfinder to reach a contrary determination.'" Vasili v. Holder,

732 F.3d 83, 89 (1st Cir. 2013) (quoting Chhay v. Mukasey, 540

F.3d 1, 5 (1st Cir. 2008)); see also 8 U.S.C. § 1252(b)(4)(B).

B. Asylum

An applicant for asylum must demonstrate that she is a

refugee, which requires a showing of either past persecution or a

well-founded fear of future persecution based on one of five

statutory grounds. See Sunarto Ang v. Holder, 723 F.3d 6, 10 (1st

Cir. 2013); 8 U.S.C. § 1101(a)(42)(A) (identifying the five grounds

9
supporting refugee status as race, religion, nationality,

membership in a particular social group, and political opinion);

8 C.F.R. § 1208.13(b). Proof of past persecution creates a

rebuttable presumption of future persecution, Sunarto Ang, 723

F.3d at 10, and absent such proof, a petitioner is "eligible for

asylum only if [she] can show that [her] fear of future persecution

is both subjectively genuine and objectively reasonable," id. at

12.

After carefully reviewing the record in light of Bahta's

burden to demonstrate eligibility for asylum, we cannot conclude

that a reasonable factfinder would be compelled on this record to

reach a different conclusion. Bahta's claim to asylum rests on

her assertion that she was persecuted in Eritrea for practicing

the Pentecostal religion, with the mistreatment including an

arrest in 2008 that prompted her departure from her homeland.

Although the BIA (following the IJ's lead) did not reject Bahta's

claim out-of-hand, it concluded that her "testimony without

sufficient documentary support is insufficient to meet her burden

of proof." It then considered whether Bahta had produced adequate

documentary evidence to corroborate her story -- an inquiry

expressly authorized by statute. See 8 U.S.C. § 1158(b)(1)(B)(ii)

(requiring an asylum applicant to provide such evidence unless it

10
"cannot reasonably [be] obtain[ed])5; see also Guta-Tolossa v.

Holder, 674 F.3d 57, 62 (1st Cir. 2012) ("[A]n IJ can require

corroboration whether or not she makes an explicit credibility

finding . . . .").

The BIA determined that, even in combination, "[t]he

respondent's testimony, of limited credibility, and her

corroborative evidence . . . does not satisfy her burdens of

proof." The record permits that judgment. Bahta provided no

concrete support for her claim that she was in Eritrea in 2008, a

member of the Pentecostal Church there, or arrested for her

religious activity. The letter from her friend (the one whom

Bahta said influenced her to become a Pentecostal) stated that

Bahta had participated in the Eritrean Pentecostal Church, but the

letter left the timeframe for Bahta's membership in that church

5 Section 1158(b)(1)(B)(ii) provides, in pertinent part:
The testimony of the applicant may be
sufficient to sustain the applicant's burden
without corroboration, but only if the
applicant satisfies the trier of fact that the
applicant's testimony is credible, is
persuasive, and refers to specific facts
sufficient to demonstrate that the applicant
is a refugee. . . . Where the trier of fact
determines that the applicant should provide
evidence that corroborates otherwise credible
testimony, such evidence must be provided
unless the applicant does not have the
evidence and cannot reasonably obtain the
evidence.

11
murky.6 Likewise, the letter from Bahta's mother did not provide

critical corroborative details. Although it reports (as

translated) that Bahta's friends from school and church "who are

not lucky to leave the country are still in prison," and refers to

the "horror and mistreatment of those captured while

cland[estine]ly performing religious activity," it does not

mention Bahta's own arrests or her departure for Saudi Arabia.

Nor can we conclude that the agency acted unjustifiably

in expecting more persuasive corroborating evidence. For

instance, it stands to reason that, despite the closure of her

church, Bahta could have obtained a written statement from one or

more of the individuals allegedly arrested along with her at the

prayer service in 2003, or from someone among the ten to fifteen

others allegedly held with her for a week in the cargo container.

Similarly, even if Bahta could not procure an official record

documenting her second arrest in 2008, the agency reasonably could

expect a statement from the aunt who arranged for Bahta's move to

Saudi Arabia shortly thereafter, which could have reinforced both

the claimed reason for, and timing of, her move.

Submission of evidence that should have been readily

6In full, the unsigned, translated letter, dated January 21,
2010, stated: "I, Rosina Hadush, have been residing in Riyaddh
Saudi Arabia, swear in the name of Jesus Chirist[sic] that, I
knaw[sic] Yordanos Bahta for many years since been in our country,
Eritrea and praudly[sic] been staunch fellowers[sic] and members
of the Eritrean Penecostechurch[sic]."

12
obtainable also would have bolstered Bahta's veracity more

generally. To give one example, testimony by the Boston relative

about Bahta's telephone call describing her situation in

Washington would have corroborated Bahta's claim that her asylum

application simply contained a mistake in identifying Boston as

her arrival city. Such testimony might have included details that

also could have strengthened a significant element of her story --

that her employers had possession of her passport -- and thus

diminish the plausible inference that Bahta had not produced her

passport only because its contents would undercut her claims.7

See Matter of J-Y-C, 24 I. & N. Dec. 260, 263 (BIA 2007) (stating

that "an asylum applicant should provide documentary support for

material facts which are central to his or her claim and easily

subject to verification . . . . The absence of such corroborating

evidence can lead to a finding that an applicant has failed to

meet [his] burden of proof." (quoting Matter of S-M-J, 21 I. &

N. Dec. 722, 725-26 (BIA 1997)) (omission and alteration in

original)).

7In her affidavit, Bahta speculated that her employers
decided to keep her passport after she told them about her positive
experience in church because they "realiz[ed] that I would wish to
live in a country where being a Christian was not considered
illegal." Given that reaction, Bahta said she became frightened
by the prospect of returning to Saudi Arabia because her "freedom
and safety would depend entirely on [her employers'] goodwill and
whim." She then sought advice from the Ethiopian woman, which led
to contact with the relative in Boston.

13
 Bahta attempts to undermine the IJ and BIA decisions by

challenging the agency's reliance on her visa application. As

described above, the DHS representative at the merits hearing

stated, in effect, that Bahta's visa application said she had

worked for the Saudi family for five years -- a length of time

inconsistent with her report that she was arrested in Eritrea in

2008.8 Neither party introduced the application into the record

and, upon questioning by the IJ, the agency representative said he

was unable to produce the document.9

Without doubt, the agency should not have used the

application at the hearing if no party could produce the document.

Indeed, as the BIA acknowledged, "the Immigration Judge's decision

must be based on the evidence before him," and, in this instance,

the IJ admitted that "[t]he Court . . . does not have any

documentation that [the five-year] representation was made in the

visa application." However, the IJ's "serious doubts" about

Bahta's credibility, even with respect to her employment in Saudi

Arabia, did not rest solely (or even largely) on the suggested

8As described above, Bahta said she moved to Saudi Arabia
with the worker's visa secured by her aunt shortly after her 2008
arrest. A five-year employment with the Saudi family would mean
that she began working for them no later than 2004.
9The representative stated that the information concerning
the duration of Bahta's employment came from "Government records,"
but added that he did not "have the ability to submit [the records]
to the Court."

14
conflict between Bahta's visa application and her sworn statements

that she was arrested in 2008.10 With respect to Bahta's timing

in Saudi Arabia, the IJ pointed to "[t]he entire series of

questions and the respondent's answers," including her testimony

that she did not have her passport, "which could clarify whether

[she] actually had been in Eritrea in 2008." The IJ seemed

skeptical of Bahta's explanation that her employers refused to

return the passport.

We emphasize, moreover, that Bahta bore the burden to

substantiate the facts underlying her asylum claim. As described

above, the IJ noted the absence of "credible, objective evidence

that she was living in Eritrea between 2004 and 2009, and

specifically in 2008 when she is alleged to have been arrested for

the second time." The BIA reiterated that deficiency, observing

that Bahta "ha[d] submitted no corroborating evidence concerning

her employment or her time in Eritrea."

In sum, we cannot say, on this record, that a reasonable

factfinder would be compelled to conclude that Bahta met her burden

to prove past persecution.11 Bahta's argument that she nonetheless

Bahta contends that the IJ misapprehended her testimony
10

about the visa application by construing it as an admission that
the five-year timeframe might be correct. The BIA, however, and
arguably the IJ as well, understood her to say only that "it might
be true that her employers made such a claim" when they completed
the application on her behalf. (Emphasis added.)
We also reject Bahta's due process claim based on the
11

government's use of the visa application. Without condoning DHS
15
showed a well-founded fear of future persecution rests primarily

on the erroneous premise that she is entitled to the rebuttable

presumption arising from a showing of past persecution, rather

than on the necessary "'specific proof' that . . . her fear of

future persecution 'is both subjectively genuine and objectively

reasonable.'" Guaman-Loja v. Holder, 707 F.3d 119, 122 (1st Cir.

2013) (quoting Decky v. Holder, 587 F.3d 104, 110 (1st Cir. 2009)).

Having sustained the IJ and BIA's determination that Bahta is not

entitled to the presumption, we also uphold their judgment that

she has not made the requisite "independent showing" of future

persecution. Gilca v. Holder, 680 F.3d 109, 116 (1st Cir. 2012);

see Moreno v. Holder, 749 F.3d 40, 45 (1st Cir. 2014) (observing

reliance on such an extra-record document, we note that the
challenged information consisted of personal details of which
Bahta would have knowledge. She thus had the opportunity at the
hearing and before the BIA to correct any inaccuracies, which was
sufficient to meet the constitutional standard for this context.
See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 6 (1st Cir. 2008)
(stating that, in asylum proceedings, "fundamental fairness means
in general terms that the alien must have a meaningful opportunity
to present evidence and be heard by an impartial judge"); cf.
Gebremichael v. INS, 10 F.3d 28, 38-39 (1st Cir. 1993) (concluding
that "the motion to reopen process can ordinarily satisfy the
demands of due process" when the BIA relies on extra-record facts
concerning changed country conditions).
Bahta addressed the discrepancy, however, only by reiterating
her story. When asked during cross-examination how she could have
been arrested in February 2008 if she was by then babysitting in
Saudi Arabia, she responded, "I was arrested in Eritrea," and said
the proof of her presence in Eritrea was the "[t]hings I have
submitted." Her attorney declined to conduct redirect. Before
the BIA, Bahta pointed to "the record, including [her] testimony
and affidavit," as proof that she moved to Saudi Arabia in 2008.

16
that petitioner's argument regarding future persecution, dependent

on the rebuttable presumption, "collapses of its own weight"

because "petitioner did not succeed in proving past

persecution").12

C. Other Forms of Relief

The showing required to qualify for withholding of

removal -- "a clear probability of persecution" -- "imposes 'a

more stringent burden of proof on an alien than does a counterpart

claim for asylum.'" Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir.

2005) (quoting Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123

(1st Cir. 2005)). Accordingly, Bahta's claim for withholding of

removal necessarily fails along with her asylum claim. See id.

Although Bahta also applied for relief under the CAT,

she makes only passing reference to that claim on appeal and it is

therefore waived. See Nikijuluw v. Gonzales, 427 F.3d 115, 120

n.3 (1st Cir. 2005).

Having rejected each of Bahta's claims, we deny her

petition for review. So ordered.

12Given that the IJ supportably rejected Bahta's asylum claim
because she "has not even established to the satisfaction of the
Court that she is in fact a Pentecostal," we need not, and
therefore do not, address whether the country conditions reports
that she submitted show that the Eritrean government persecutes
Pentecostals or, indeed, whether the type of mistreatment Bahta
claims to have experienced in Eritrea amounted to persecution.

17