Azie v. Holder

602 F.3d 916, 602 F. Supp. 3d 916, 2010 U.S. App. LEXIS 8207, 2010 WL 1565451
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 21, 2010
Docket09-1346
StatusPublished
Cited by1 cases

This text of 602 F.3d 916 (Azie v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Azie v. Holder, 602 F.3d 916, 602 F. Supp. 3d 916, 2010 U.S. App. LEXIS 8207, 2010 WL 1565451 (8th Cir. 2010).

Opinion

SMITH, Circuit Judge.

The Department of Homeland Security issued Judith Azie a notice to appear charging her with being subject to removal pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act (INA); 8 U.S.C. § 1227(a)(1)(B) (remaining without authorization). Azie admitted the allegations and charges in the notice to appear. Subsequently, Azie applied for asylum, withholding of removal, and Convention Against Torture (CAT) protection. The Immigration Judge (IJ) issued a decision finding Azie removable as charged and denying her requests for relief. The Board of Immigration Appeals (BIA) affirmed the IJ’s judgment and Azie now petitions this court for review. We deny the petition.

I. Background

Azie arrived in the United States on or about November 17, 2003, as a non-immigrant visitor, with authorization to remain until May 17, 2004. On February 1, 2005, the Department of Homeland Security issued Azie a notice to appear charging her with being subject to removal pursuant to § 237(a)(1)(B) of the INA. At a hearing before the IJ on April 1, 2005, Azie admit *918 ted the allegations and charges in the notice to appear, conceding that she is removable. Azie also applied for asylum, withholding of removal, and CAT protection at the hearing.

In support of her applications, Azie testified that she suffered physical abuse in Cameroon because of her political affiliations. She claimed that she was detained and beaten in October 1992 and October 2001 by Cameroonian officials because of her support of the Social Democratic Front and the South Cameroon National Congress (SCNC). As a result of these beatings, Azie testified that she suffers from headaches, anxiety, depression, has trouble concentrating, processes information slowly, and has a poor memory. Azie also bears a noticeable scar that she claims resulted from the 2001 beating.

Azie further testified that she became involved with the SCNC after her release in 1992. Azie offered her SCNC membership card as proof of SCNC involvement. Azie asserted that she received the SCNC membership card in February 2001, but that she lacked a photograph or money to have a photograph taken at the time, so she did not affix a photograph to the card. In 2003, Azie obtained a visa to come to the United States. She claimed she affixed one of the photographs that she obtained for her visa to her 2001 SCNC card. She maintains that this explains why the scar she received from the October 2001 beating appears on her February 2001 SCNC card rather than one made contemporaneous with the issuance of the membership card.

Azie also presented medical records in support of her claims at the hearing. These records state that Azie’s brain trauma occurred in 2002, which contradicted her testimony that she was injured in 2001. During the hearing, Azie attempted to explain the discrepancy. She testified that she informed medical staff that she began having problems from, and taking medications for, the injury in 2002. She claims that the staff must have confused the time of injury with when she began receiving treatment for it. The error, Azie surmises, was probably copied by subsequent caregivers. Alternatively, Azie asserts that any misstatement she made about the date that her injuries occurred can be attributed to the brain trauma that continues to plague her.

The IJ found Azie removable as charged. Azie appealed to the BIA. The BIA affirmed the IJ’s ruling, and Azie now appeals the ruling of the BIA. On appeal, we address two issues: (1) whether the BIA and IJ erred by failing to give proper weight to Azie’s brain injuries and (2) whether the BIA and IJ erred in concluding that Azie’s testimony was not credible based on the photograph affixed to her SCNC membership card and dates contained in her medical record. We answer both questions in the negative and affirm the BIA’s ruling.

II. Discussion

A. Weight Given to Azie’s

Brain Injuries

On appeal, Azie maintains that she was unable to properly respond to questions during her hearing because of her mental impairments. First, Azie asserts that in making her adverse credibility determination, the IJ made no reference to Azie’s impairments. Although she is not raising a translation-based due process claim, Azie contends that the rule in translation cases is pertinent here: “[T]he alien must be able to understand the questions posed to him and to communicate his answers to the IJ.” Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.2000). Thus, Azie concludes that it is improper for an asylum application to be denied when the IJ cannot — be it the result of poor translation or, in this case, impaired communication *919 skills — understand the petitioner, whether that misunderstanding causes a due process violation, or whether it results in an adverse credibility finding.

Next, Azie urges that since her credibility was at issue, the IJ should have suspended the hearing to permit her and her attorney to review the testimony to determine what questions were misunderstood and to provide an opportunity to cure any defects or misunderstandings in her prior testimony.

“We review the [BIAj’s conclusions of law de novo, with substantial deference to its interpretations of statutes and regulations administered by the agency.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004). “The [BIA]’s findings of fact will be disturbed only if unsupported by substantial evidence.” Id.

We review the agency determination that an alien is not eligible for asylum, withholding of removal, or relief under the Convention Against Torture using the deferential substantial evidence standard. Under this deferential standard of review, we are not at liberty to reweigh the evidence, and we will uphold the denial of relief unless the alien demonstrates that the evidence was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.

Osonowo v. Mukasey, 521 F.3d 922, 926-27 (8th Cir.2008) (internal quotations and citations omitted). “When the BIA adopts and affirms the IJ’s decision, but also adds reasoning of its own, we will review both decisions together.” Chen v. Mukasey, 510 F.3d 797, 800 (8th Cir.2007).

Azie’s arguments fail. Azie, through counsel, had ample opportunity at her hearing to raise lack of comprehension or inability to coherently respond. Azie did not. Moreover, as the BIA noted, the record reflects that the IJ continued the hearing for, approximately six months. During this time, Azie’s counsel still did not raise these concerns. Azie bore the burden to state if and when she did not understand a question and to provide credible testimony in response. Feleke v. INS,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

HONG YIN v. Frazier
804 F. Supp. 2d 969 (D. South Dakota, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
602 F.3d 916, 602 F. Supp. 3d 916, 2010 U.S. App. LEXIS 8207, 2010 WL 1565451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/azie-v-holder-ca8-2010.