Cassandre Desrosiers v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 17, 2006
No. 05-14189
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency No. A95-230-330

CASSANDRE DESROSIERS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(March 17, 2006)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Cassandre Desrosiers petitions for review of the Board of Immigration

Appeals’ (BIA’s) decision affirming the Immigration Judge’s (IJ’s) order finding
her removable and denying her application for asylum, withholding of removal

under the Immigration and Nationality Act (INA), and relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (CAT). Desrosiers challenges the IJ’s adverse credibility

determination. She contends the Fanmi Lavalas persecuted her in Haiti on account

of her political activity and she has a well-founded fear of persecution. We deny

her petition.

I. STANDARD OF REVIEW

We review the IJ’s decision as if it were the BIA’s because the BIA

expressly adopted the IJ’s findings. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). To the extent the IJ’s decision was based on a legal

determination, our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244,

1247-48 (11th Cir. 2001). The IJ’s factual determinations are reviewed under the

substantial-evidence test, and we “must affirm the [IJ’s] decision if it is ‘supported

by reasonable, substantial, and probative evidence on the record considered as a

whole.’” Al Najjar, 257 F.3d at 1283-84 (citation omitted). “To reverse the IJ’s

fact findings, we must find that the record not only supports reversal, but compels

it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

II. DISCUSSION

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A. Adverse credibility finding

Desrosiers first argues the IJ’s adverse credibility determination is not

supported by substantial evidence as it was based on minor inconsistencies

regarding specific dates, improper reliance on gaps in the testimony, and testimony

that was not truly inconsistent. Further, some inconsistencies can be attributed to

her poor understanding of the English language.

An alien’s testimony, if credible, may be sufficient to sustain the burden of

proof for asylum or withholding of removal without corroboration. 8 C.F.R.

§§ 208.13(a), 208.16(b). “Conversely, an adverse credibility determination alone

may be sufficient to support the denial of an asylum application.” Forgue v. U.S.

Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). “The weaker the applicant’s

testimony, however, the greater the need for corroborative evidence.” Yang v. U.S.

Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). When the IJ enumerates an

applicant’s inconsistencies and is supported by the record, we “will not substitute

our judgment for that of the IJ with respect to its credibility findings.”

D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir. 2004). Although we

have not directly addressed the issue, both the Third and the Ninth Circuits have

held an adverse credibility finding must go to the “heart of the asylum claim,” and

not be based on minor discrepancies, inconsistencies, and omissions. See Gao v.

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Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002); Akinmade v. INS, 196 F.3d 951, 954

(9th Cir. 1999). Further, an adverse credibility determination does not alleviate the

IJ’s duty to consider all of an applicant’s evidence. Forgue, 401 F.3d at 1287.

The IJ’s adverse credibility determination, to the extent it addressed

Desrosiers’ testimony concerning her political activity, was supported by

substantial evidence. The IJ cited several inconsistencies in Desrosiers’ account of

her political activity including: (1) her statements related to the Patriotte Uni Pour

La Democracy D, Haiti (PUDH), the Convergence Party (CP), and Gerard

Gourgue’s leadership of the PUDH; and (2) her statements related to when she

joined the PUDH. Desrosiers stated the PUDH was part of the CP, and essentially

the same organization. The documentary evidence did not support this assertion.

The only document linking the PUDH and the CP was Desrosiers’ ID card.

However, erasure smudges and incomplete seals contained on the card supported

the conclusion the card was not authentic. Other documents, which failed to

identify PUDH as part of CP, supported a conclusion PUDH did not exist.

Desrosiers also stated she joined the PUDH in 1997, but later testified she joined

the group in 2000. These inconsistencies cut to the heart of her claim as they

concern the length and extent of Desrosiers’ political activity. Accordingly, the

IJ’s finding that Desrosiers was not credible with regard to her political activity

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was supported by substantial evidence, and Desrosiers presented no evidence

compelling a reversal of this determination.1 However, as the IJ based his ultimate

conclusion on Desrosiers’ lack of evidence, the adverse credibility finding was not

determinative.

B. Asylum

Next, Desrosiers argues she was eligible for asylum under the INA because

she was persecuted by the Lavalas party on account of her political opinion.

Specifically, she argues she suffered past persecution and has a well-founded fear

of future persecution because of the abduction of her and her brother, her attempted

rape by one of the kidnapers, and her brother’s continued disappearance, all of

which was on account of their political activism.

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However, the IJ’s findings that Desrosiers’ was not credible when she testified
regarding how long she was held captive by her abductors, the identity of her abductors, and
whether or not she was raped were not supported by substantial evidence. Desrosiers’ repeatedly
stated she was held for three days by the men who abducted her and her brother on July 13,
2001. However, she also stated in her credible fear interview that the date of her release was
“like the 18th of July. . .” The IJ’s finding these statements were inconsistent was not supported
by substantial evidence as she consistently maintained she was only held for three days and
never stated a definite release date, only that it was on or about July 18, 2001. The IJ’s finding
her testimony was inconsistent with regards to the descriptions of the men who abducted her and
her brother is also not supported by substantial evidence. The descriptions, ranging from
soldiers, to armed men in uniform, to armed men dressed in CIMO uniforms, all essentially
describe armed men dressed in uniform. Further, it appears the IJ did not consider the United
States State Department Country Report, which noted after the military disbanded, former
personnel made their way into the national police force, including the CIMO unit, which carries
out mistreatment of political opponents. In addition, Desrosiers’ single statement she was raped,
which was immediately corrected once her attorney explained the meaning of “rape” in the
context of American law, is not substantial evidence supporting a finding her multiple, consistent
accounts of this incident were not credible.

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An alien who arrives in or is present in the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security or the

Attorney General has discretion to grant asylum if the alien meets the INA’s

definition of a “refugee.” Id. § 1158(b)(1). A “refugee” is defined in the INA as:

any person who is outside any country of such person’s nationality . . .
who is unable or unwilling to return to, and 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 . . .
political opinion . . . .

Id. § 1101(a)(42)(A). The asylum applicant carries the burden of proving statutory

“refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the

alien must, with specific and credible evidence, establish (1) past persecution on

account of a statutorily listed factor, or (2) a “well-founded fear” the statutorily

listed factor will cause such future persecution. 8 C.F.R. § 208.13(a), (b).

Substantial evidence supports the IJ’s decision Desrosiers did not suffer past

persecution on account of a protected ground. The IJ found Desrosiers’ testimony

concerning her political involvement was incredible, and, as explained above, this

finding was supported by substantial evidence. As Desrosiers provided no

compelling testimony or documentation that her captors were motivated by her

political opinion, her past persecution claim fails. With regard to a well-founded

fear of future persecution, Desrosiers has pointed to no credible evidence

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compelling a finding she would be persecuted on account of her political opinion

by the Lavalas if she were returned to Haiti.

C. Withholding of removal and CAT relief

Desrosiers further asserts she was eligible for withholding of removal and

CAT relief. The evidentiary burdens for withholding of removal and relief under

the CAT are greater than that imposed for asylum, accordingly, if an alien has not

met the well-founded fear standard for asylum, he generally cannot meet the

standard for withholding of removal or relief under the CAT. Al Najjar, 257 F.3d

at 1292-93, 1303. Desrosiers’ withholding of removal claims and CAT claims fail,

as she did not establish eligibility for asylum, which carries a lower burden of

proof.

III. CONCLUSION

Desrosiers has not shown she was persecuted or has a well-founded fear of

persecution on account of a protected ground. Thus, she is not entitled to asylum,

withholding of removal, or relief under the CAT.

PETITION DENIED.