Settenda v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1722

YUSUFU BILLY SETTENDA and MARIA RHITA NABAWANGA,

Petitioners,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

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

Before

Selya, Lynch, and Lipez, Circuit Judges.

William E. Graves, Jr., with whom Kerry E. Doyle and Graves &
Doyle were on brief, for petitioners.

Shelley R. Goad, Attorney, Civil Division, with whom Peter D.
Keisler, Assistant Attorney General, Civil Division, and Linda S.
Wendtland, Assistant Director, Office of Immigration and
Litigation, were on brief, for respondent.

August 2, 2004
 LIPEZ, Circuit Judge. Yusufu Billy Settenda and Maria

Rhita Nabawanga, natives and citizens of Uganda, seek review of the

decision by a single member of the Board of Immigration Appeals

(BIA) to deny their applications for asylum under the Immigration

and Nationality Act (INA) § 208(a), 8 U.S.C. § 1158(a), withholding

of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief

under Article 3 of the United Nations Convention Against Torture

(CAT).1 We deny the petition.

I.

Settenda and Nabawanga traveled separately from Uganda to

the United States on business visas in 1999. The following year,

the INS charged them both as being removable from the United States

under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as aliens who

remained beyond the time authorized. Petitioners conceded that

they were removable as charged and applied for asylum, withholding

of removal, and protection under CAT. During several merits

hearings before the Immigration Judge (IJ), Settenda claimed that

he was a member of the Ugandan Internal Security Organization

(ISO), and, in that capacity, had been assigned to investigate the

1
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs Reform
and Restructuring Act of 1998, Pub.L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231 (2000)).

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death of Ugandan Prince Charles Happy Kiganangoma.2 Settenda

testified that his investigation implicated certain high-level

government officials in the Prince's death, including his immediate

superior at ISO. Settenda claimed that he was threatened and that

two attempts were made on his life as a result of his

investigation. Further, Settenda attested that because of the

information he possessed about governmental involvement in Prince

Kiganangoma's death, he feared persecution and torture by

government officials should he return to Uganda.

After the merits hearings, the IJ found that Settenda's

testimony lacked credibility, was inconsistent and implausible on

key points, and was not supported by the submitted documentary

evidence. After citing several portions of Settenda's testimony

and their deficiencies, the IJ stated that she "believe[d]

[Settenda] is afraid to return to Uganda but the true reasons for

his fear and the exact nature of the harm he fears had not been

presented to this Court in a straightforward or truthful manner."

The IJ found that Settenda "provided information and evidence which

is not correct or truthful concerning his investigation into a

highly publicized political murder." Finally, again citing

specifically to portions of Settenda's testimony that were

inconsistent, implausible, or both, the IJ stated that "[b]ased on

2
Nabawanga's asylum claim is derivative of Settenda's
application, and so we treat Settenda as the lead petitioner.

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all the evidence before me, . . . [Settenda] has not provided what

to this Court is credible, complete and truthful information

concerning his activities with the ISO, his reasons for leaving

Uganda and what exactly he fears would happen if he comes back."

Accordingly, the IJ denied the relief sought but nevertheless

granted petitioners voluntary departure under INA § 240B, 8 U.S.C.

§ 1229C.

On appeal to the BIA, a single member of the Board

rejected petitioners' claims, specifically relying upon and

affirming the IJ's findings that the "testimony was not

sufficiently credible and the evidence presented was not adequate

to support the [petitioners’] burden of proof." The BIA also

stated that

[o]verall, we agree with the Immigration Judge
that the testimony, of limited credibility and
lacking in detail, combined with the
inadequate documentary support, provides
insufficient evidence to meet the overall
burden of proof. On this same basis, we agree
that the record does not provide prima facie
evidence that it would be more likely than not
that the [petitioners] would face torture if
returned to their native country. We,
therefore, agree they are ineligible for
relief under the Convention Against Torture.

In his petition to this court, Settenda makes three

arguments: first, that his testimony was credible and establishes

his eligibility for asylum and withholding of removal; second, that

the IJ and BIA failed to analyze his CAT claim under the proper

legal standard; and third, that the single-member BIA order

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violated the applicable regulations and his rights under the Fifth

Amendment's Due Process Clause. After describing the standards of

review, we analyze these arguments seriatim.

II.

"Ordinarily, Courts of Appeals review decisions of the

[BIA], and not those of an IJ. When the BIA does not render its

own opinion, however, and either defers [to] or adopts the opinion

of the IJ, a Court of Appeals must then review the decision of the

IJ." Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003) (quoting

Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)). We will uphold

decisions of the IJ and BIA "if supported by reasonable,

substantial, and probative evidence on the record considered as a

whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal

quotation marks omitted). This standard applies both to asylum and

withholding claims as well as to claims brought under CAT. See,

e.g., Pieterson v. Ashcroft, 364 F.3d 38, 40 (1st Cir. 2004). We

will reverse only if the petitioner's evidence would compel a

reasonable factfinder to conclude that relief was warranted.

Elias-Zacarias, 502 U.S. at 483-84 (codified at INA § 242(b)(4)(B),

8 U.S.C. § 1252(b)(4)(B) ("the administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary")). Appellate courts review legal

conclusions de novo, Manzoor v. U.S. Dept. of Justice, 254 F.3d

342, 346 (1st Cir. 2001), including alleged errors related to due

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process claims, Mekhoukh v. Ashcroft, 358 F.3d 118, 129 (1st Cir.

2004).

A. Asylum and Withholding of Removal

Settenda bore the burden of establishing his eligibility

for asylum and withholding of removal. 8 C.F.R. § 1208.13(a). To

be eligible for asylum, Settenda had to prove that he was a refugee

under 8 U.S.C. § 1158(b)(1), meaning that he was "unable or

unwilling to return to . . . [Uganda] 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." 8 U.S.C. § 1101(a)(42)(A) (defining "refugee"). A

petitioner who is unable to establish eligibility for asylum a

fortiori fails to establish eligibility for withholding of

deportation. Khem v. Ashcroft, 342 F.3d 51, 54 (1st Cir. 2003);

see also, Nelson v. INS, 232 F.3d 258, 261 n.2 (1st Cir. 2000)

("Because a failure to prove eligibility for asylum under INA §

208, 8 U.S.C. § 1158, necessarily means a failure to meet the

requirements for withholding of deportation, we only discuss the

former." ). An applicant must support his claim through credible

testimony at all stages of the proceedings, and if the testimony is

credible, it "may be sufficient to sustain the burden of proof

without corroboration." 8 C.F.R. § 1208.13(a).

The IJ's well documented finding that Settenda failed to

support his application for asylum and withholding with credible

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testimony dooms his claim on appeal. "[T]he IJ must, if he or she

chooses to reject [the petitioner's] testimony as lacking

credibility, offer a specific, cogent reason for [the IJ's]

disbelief." Gailius v. INS, 147 F.3d 34, 47 (1st Cir. 1998)

(internal quotation marks and citation omitted). Here, the IJ

detailed the reasons for her conclusions, drawing on her

observations of Settenda while testifying as well as analyzing the

inconsistencies in and improbability of portions of the testimony.

Similarly, the BIA identified the portions of the IJ's findings--

namely, the general lack of credibility of Settenda's testimony and

the inadequate documentary support--which it relied on and

affirmed. See Salazar v. Ashcroft 359 F.3d 45, 52 (1st Cir. 2004)

(citing Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996), for the

proposition that "if the Board's view is that the IJ 'got it

right,' the law does not demand that the Board go through the idle

motions of dressing the IJ's findings in its own prose" and that

the BIA "may simply state that it affirms the IJ's decision for the

reasons set forth in that decision"). The IJ made detailed

findings about the deficiencies in Settenda's testimony and

documentary evidence and why she found his testimony not to be

credible; the BIA specifically affirmed and adopted those findings.

Our review reveals that far from compelling a conclusion contrary

to that reached by the IJ and BIA, see Elias-Zacarias, 502 U.S. at

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483-84, the findings of the IJ are supported by substantial

evidence. On this record, we find no error.

B. Relief Under the Convention Against Torture

An applicant seeking protection under CAT must establish

"that he or she is more likely than not to be tortured if removed"

to the proposed country of removal. Saint Fort v. Ashcroft, 329

F.3d 191, 196 (1st Cir. 2003) (citing 8 C.F.R. § 208.16(c)(2)).

"For an act to constitute torture it must be: (1) an act causing

severe physical or mental pain or suffering; (2) intentionally

inflicted; (3) for a proscribed purpose; (4) by or at the

instigation of or with the consent or acquiescence of a public

official who has custody or physical control of the victim; and (5)

not arising from lawful sanctions." Elien v. Ashcroft, 364 F.3d

392, 398 (1st Cir. 2004) (quoting In re J-E-, 23 I. & N. Dec. 291,

297 (BIA 2002)). See also 8 C.F.R. § 208.18(a)(1).

Settenda claims that the IJ and BIA failed to apply the

correct legal standard in denying his request for relief under CAT

because the undisputed portions of his testimony, along with the

U.S. State Department's 2001 Ugandan country conditions report,

establish that he will be tortured if he returns to Uganda.

Specifically, Settenda argues (1) that his testimony showed that he

would be tried and convicted for desertion, and possibly treason,

in a Ugandan military court, and (2) the State Department country

conditions report, along with an Amnesty International report,

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establish that prison conditions in Uganda meet the definition of

torture under CAT. In reply, the government seems to urge that the

IJ's credibility determinations alone foreclose Settenda's claim

for relief under CAT and that the CAT claim should be denied

because the asylum and withholding claims were properly denied.

While we have not addressed the precise contours of the

different standards petitioners must meet to support a claim for

asylum and withholding of removal as compared to relief under CAT,

we have observed that a CAT claim, which requires that the

petitioner show that it is more likely than not he would be

tortured upon return to his country, establishes a higher burden of

proof than an asylum claim, which requires that the petitioner show

a well founded fear of persecution. El Moraghy v. Ashcroft, 331

F.3d 195, 205 (1st Cir. 2003).3 This distinction has prompted one

court to observe that CAT's "reach is both broader and narrower

than that of a claim for asylum or withholding of deportation:

coverage is broader because a petitioner need not show that he or

she would be tortured 'on account of' a protected ground; it is

narrower, however, because the petitioner must show that it is

'more likely than not' that he or she will be tortured, and not

simply persecuted upon removal to a given country." Kamalthas v.

INS, 251 F.3d 1279, 1283 (9th Cir. 2001).

3
We have also observed that while aggravated felons are
statutorily ineligible for asylum and withholding, they are
eligible for relief under CAT. Saint Fort, 329 F.3d at 195.

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 Additionally, unlike some of our sister circuits, we have

not addressed whether an adverse credibility finding that defeats

a request for asylum a fortiori defeats a claim for relief under

CAT. See Mansour v. INS, 230 F.3d 902, 906-09 (7th Cir. 2000)

(holding that the BIA failed to properly consider petitioner's CAT

claim when it denied the motion to reopen because of an adverse

credibility finding regarding the petitioner's request for asylum).

We think a per se rule that an adverse credibility determination on

asylum automatically defeats an application under CAT would be

erroneous. Each case will vary with the facts. While an adverse

credibility determination on asylum would doom some CAT claims, it

would not doom others.

Here, Settenda argues that the IJ's adverse credibility

findings were not applicable to at least a portion of his

testimony, citing the IJ's statement that "[i]n the testimony of

both [Settenda] and his wife, threats have been made that he would

be [brought] to justice if he returns to Uganda. He may, according

to the way justice works in Uganda, have reasons to believe that he

could be harmed through an extrajudicial trial or other treatment

. . . . Most clearly, this respondent has indicated that he fears

harm because he abandoned his duties." Settenda claims that this

finding, coupled with country condition reports, substantiates his

CAT claim even though his asylum and withholding claims were

rejected. Even if these statements by the IJ could be read as

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crediting Settenda's testimony that he will be subjected to a

military trial and subsequently imprisoned -- a matter on which we

take no view -- Settenda's CAT claim still founders as a matter of

law. In light of relevant precedent, it was not unreasonable for

the BIA to conclude that the documentary evidence does not support

the legal conclusion that the trial and prison conditions

constitute torture.

Settenda cites the following portion of the State

Department country conditions report for Uganda to substantiate his

claim that he will be tortured if returned to his home country.

The military court system does not assure the
right to a fair trial. Although the accused
has the right to retain legal counsel,
military defense attorneys often are untrained
and may be assigned by the military command,
which also appoints the prosecutor and the
adjudicating officer. The sentence passed by
the military court, which can include the
death penalty, may be appealed to the high
command but not to the High or Supreme Courts.

Additionally, Settenda draws attention to the State Department's

conclusion that "[p]rison conditions remain harsh and life

threatening. . . . Both civilian and military prisons have high

mortality rates from overcrowding, malnutrition, diseases spread by

unsanitary conditions, and HIV/AIDS." The report goes on to say

that the Uganda Human Rights Commission "reported severely

inadequate medical services, seriously unhygienic conditions, and

a situation of 'semi-starvation' among prisoners in many prisons."

Similarly, Amnesty International's 2000 Uganda report found that

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"[p]rison conditions were harsh, with severe overcrowding, and

disease was rife."

The BIA rejected a similar claim by a Haitian citizen who

asserted that he would be tortured if returned to Haiti because, as

a repatriated convict, he would be subjected to indefinite

detention and imprisonment in the Haitian prison system. See In

re J-E-, 23 I. & N. Dec. 291 (BIA 2002) (relied upon by Elien v.

Ashcroft, 364 F.3d 392 (1st Cir. 2004)). There, the State

Department report on Haiti indicated that "prison facilities are

overcrowded and inadequate. Haitian prisoners are deprived of

adequate food, water, medical care, sanitation, and exercise. Many

prisoners are malnourished." Id. at 293. Notwithstanding these

gross inadequacies, the BIA concluded that the indefinite detention

and severely substandard prison conditions did not constitute

torture under CAT, even though they might very well be considered

"cruel, inhuman, or degrading punishment or treatment." Id. at

301, 304.

Additionally, the petitioner in In re J-E- established

that isolated acts of torture occurred in Haitian prisons, such as

burning with cigarettes and use of electric shock. However, the

BIA found that he "failed to establish that it was more likely than

not that [he] will be subject to torture if he is removed to Haiti.

For example, there is no evidence that deliberately inflicted acts

of torture are pervasive and widespread; that the Haitian

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authorities use torture as a matter of policy; or that meaningful

international oversight or intervention is lacking." Id. at 303.

Settenda's case is on all fours with In re J-E- and

Elien. It was not unreasonable for the BIA to conclude that as

alarming as the prison conditions in Uganda may be, they do not

constitute torture under CAT. Unchallenged INS regulations provide

that "[i]n order to constitute torture, an act must be specifically

intended to inflict severe physical or mental pain or suffering."

8 C.F.R. § 208.18. There is no evidence of that here. In fact, as

in In re J-E-, the State Department report indicates that "[t]he

harsh conditions largely resulted from the Government's seriously

inadequate funding of prison facilities." Also mirroring In re J-

E-, the State Department found that "[t]he central prison system

continued to work with [non-governmental organizations] and the

donor community to improve prison buildings, water and sanitation

systems, food, and uniforms." While "[p]rogress has been minimal,"

the report also found that "Government agencies have sponsored or

participated in numerous conferences on the justice system and

prison conditions, and worked closely with international and

domestic human rights organizations on prison reform efforts.

There were reports that mortality rates decreased following these

activities." Finally, as in In re J-E-, the State Department noted

that the International Committee of the Red Cross and several local

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non-governmental organizations were permitted access to the prison

system.

To the extent that the State Department's report on

Uganda mentions isolated incidents of torture within the prison

system, Settenda, like the petitioner in In re J-E-, brought forth

no evidence that those incidents of torture are so prevalent in

Ugandan prisons that, more likely than not, he would be tortured

there. Accordingly, we leave undisturbed the denial of relief under

CAT.

C. Violation of BIA Regulations and Due Process

Citing to 8 C.F.R. §§ 1003.1(d)(1), (d)(3), and (e),

Settenda claims that the BIA's single-member decision in this case

contravened its own regulations and violated his due process

rights. The relevant regulations were part of procedural reforms

to improve case management and were issued to improve the

efficiency of the BIA and to allow one-member resolutions of a

greater variety of cases. Id. Specifically, 8 C.F.R. §

1003.1(e)(5) provides that

[i]f the Board member to whom an appeal is
assigned determines, upon consideration of the
merits, that the decision is not appropriate
for affirmance without opinion, the Board
member shall issue a brief order affirming,
modifying, or remanding the decision under
review, unless the Board member designates the
case for decision by a three-member panel under
paragraph (e)(6) of this section under the
standards of the case management plan.

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Id. Petitioners argue that § 1003.1(e)(5)'s provision for a brief

order by a single member conflicts with 8 C.F.R. § 1003.1(a)(7),

which provides that "[i]f the Board Member determines that the

decision is not appropriate for affirmance without opinion, the

case will be assigned to a three-member panel for review and

decision." Settenda argues that § 1003.1(a)(7) compels the Board

to either issue a single member affirmance without opinion, or to

send the case to a three-member panel. This argument is

unavailing.

While these two provisions might seem to conflict on

their face, the comments regarding the new provision, under the

heading "Expanded Single Member Review," explain that

[o]ne of the primary components of the case
management system is expanded single-member
review. The current streamlining process
permits a single Board member to affirm the
decision of the immigration judge without
opinion. 8 CFR 3.1(a)(7) [now moved to 8
C.F.R. § 1003.1(a)(7)]. The final rule retains
this current practice intact, but expands upon
this authority to permit a single Board member
to affirm, modify, or remand the immigration
judge's decision with a short explanation.

67 Fed. Reg. 54878, *54885 (citation omitted). The government's

brief suggests that these comments indicate that § 1003.1(a)(7) was

not deleted from the regulations due to a clerical error. This

argument is supported by the comprehensive § 1003.1(e) "case

management system" that contains provisions for initial case

screening (§ 1003.1(e)(1)); dispositions of motions and procedural

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or ministerial issues (§ 1003.1(e)(2)); triage of cases receiving

a merits review (§ 1003.1(e)(3)); affirmance without opinion by a

single Board member (§ 1003.1(e)(4)); brief orders by a single

Board member (§ 1003.1(e)(5)); and three-member panel decisions (§

1003.1(e)(6)). It is particularly notable that § 1003.1(e)(4)

provides that a single member of the Board may issue an affirmance

without opinion, as does § 1003.1(a)(7), which is cited by

Settenda.

The Board member to whom a case is assigned
shall affirm the decision of the Service or
the immigration judge, without opinion, if the
Board member determines that the result
reached in the decision under review was
correct; that any errors in the decision under
review were harmless or nonmaterial; and that
(A) The issues on appeal are squarely
controlled by existing Board or federal court
precedent and do not involve the application
of precedent to a novel factual situation; or
(B) The factual and legal issues raised on
appeal are not so substantial that the case
warrants the issuance of a written opinion in
the case.

Id. § 1003.1(e)(4). The duplication of provisions providing for a

single member affirmance without opinion supports the government's

contention that a clerical error led to the continued inclusion of

the now duplicative § 1003.1(a)(7). In any event, the comments to

the final rule make clear that the agency intended to expand the

purview of single members to go beyond issuing an affirmance

without opinion and include the ability to issue a brief order

disposing of the case.

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 Finally, even if 1003(e)(5), which was adopted in 2002,

conflicts with § 1003(a)(7), which was adopted earlier, we note

that the more recent, specific enactment supercedes the older, more

general one. Cf. Natural Resources Defense Council, Inc. v. EPA,

824 F.2d 1258, 1278 (1st Cir. 1987)("Using familiar statutory

interpretation, when there is such a conflict, the most recent and

more specific congressional pronouncement will prevail over a

prior, more generalized statute."). See also Batalova v. Ashcroft,

355 F.3d 1246, 1252 (10th Cir. 2004)(upholding 8 C.F.R. § 3.1(e)(5)

which was recodified and renumbered as § 1003(e)(5)). In light of

the explicit language allowing a single Board member to "issue a

brief order affirming, modifying, or remanding the decision under

review," § 1003.1(e)(5), which is part of a recently enacted

comprehensive case management scheme, we find that the BIA's use of

this procedure did not contravene its own regulations.

Finally, we briefly address Settenda's due process claim.

We have already ruled that the BIA's streamlined procedures do not

violate petitioners' due process rights. See, e.g., Albathani, 318

F.3d at 375-78 (holding that the BIA's "affirmance without opinion"

procedure does not violate due process). If due process

requirements are met when the BIA affirms the IJ's finding without

issuing any opinion, the due process requirements are certainly met

when the BIA affirms the IJ's finding with a brief explanatory

order. Similarly, we reject Settenda's claim that the BIA violated

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his due process rights by allegedly failing to provide a clear

administrative finding or adequately review and establish the

record of the case. Again, while the BIA "is obliged to weigh all

the pertinent factors . . ., to exhibit due consideration for the

universe of weighted factors when tallying the equities, to

exercise independent judgment, and to state plainly its reasons for

granting or denying relief," Chen v. INS, 87 F.3d 5, 7 (1st Cir.

1996), it is well established that the "BIA can adopt, without

further explication, the IJ's opinion." Albathani, 318 F.3d at 377.

See also Chen, 87 F.3d at 8 ("[W]e join eight of our sister

circuits in ruling that the Board need not write at length merely

to repeat the IJ's findings of fact and his reasons for denying the

requested relief, but, rather, having given individualized

consideration to a particular case, may simply state that it

affirms the IJ's decision for the reasons set forth in that

decision.") (listing cases). Here, the BIA opinion indicates that

it gave individualized attention to Settenda's case, reviewed the

record, and exercised independent judgment. Furthermore, it stated

plainly its reasons for affirming the IJ's decision. Therefore, on

this record, we find no deprivation of Settenda's due process

rights.

Affirmed.

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