Bakuaya v. Mukasey

533 F.3d 39, 2008 U.S. App. LEXIS 14883, 2008 WL 2719887
CourtCourt of Appeals for the First Circuit
DecidedJuly 14, 2008
Docket07-1667, 07-2439
StatusPublished
Cited by3 cases

This text of 533 F.3d 39 (Bakuaya v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bakuaya v. Mukasey, 533 F.3d 39, 2008 U.S. App. LEXIS 14883, 2008 WL 2719887 (1st Cir. 2008).

Opinion

*40 PER CURIAM.

Petitioner, Abofa Ayawa Bakuaya, a native of Togo, arrived in the United States in 1989 on a student visa. In 1993, she filed an asylum application — later supplemented by an amended application filed in 1999 — claiming that her father, uncle and brother had been killed by Togolese officials on account of their tribal affiliation (membership in the EWE tribe) and political activities (membership in the Union of Forces for Change (“UFC”) party); that her mother had been detained and interrogated on one occasion and arrested and tortured on another; and that various of her family members were forced to flee Togo and take refuge in neighboring Ghana. Two other brothers also fled Togo, eventually obtaining asylum in the United States and England.

After repeated delays, a hearing was held before an Immigration Judge (“IJ”) in Boston on January 21, 2000. During the hearing, confronted with an inconsistency in her asylum materials and in the face of the IJ’s skepticism, Bakuaya recanted: she admitted that her brother had not been killed, and her mother had not been arrested and tortured; in fact her mother was in the United States in July 1994, assisting Bakuaya with the care of her then-infant daughter. Bakuaya’s mother had since voluntarily returned to Togo, where two of Bakuaya’s other siblings continued to live. However, Bakuaya maintained that her father and uncle were killed in 1974 because of their political activities, that her family had been forced to flee to Ghana for brief periods of time, and that her husband and two of her brothers — all of whom had fled Togo— were politically active and that she would be targeted upon her return because of her association with them.

In an oral opinion, the IJ noted that Bakuaya had repeatedly lied to immigration officials. Her first immigration lawyer had helped concoct the false story (and had since been disbarred and convicted on charges of immigration fraud), but while Bakuaya had replaced her attorney, she felt she could not abandon her false claims because her brother had adopted the false story in his own successful asylum application.

Despite misgivings about rewarding fraudulent applications, the IJ granted Ba-kuaya’s asylum request. The IJ found that the human rights conditions in Togo were “atrocious,” and that Bakuaya had established that certain members of her family had been targeted for their political and tribal affiliations, and that if she returned to Togo she might be targeted as well due to her family connections and her long residence in the United States.

On appeal, the Board of Immigration Appeals (“BIA”) reversed. It held that Bakuaya failed to satisfy her burden of proving 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(b)(1)(A), 1101(a)(42)(A) (2000), both because her testimony- — on which her claim largely rested — lacked credibility, and because, even if believed, her testimony did not establish a well-founded fear of future persecution: she was never personally targeted in Togo, had never been politically active, and several of her immediate family members continued to live in Togo unharmed.

Bakuaya petitioned for review of the BIA decision in this court. In the interim, the BIA remanded the case to the IJ to rule on Bakuaya’s request for voluntary departure, and Bakuaya filed a motion to reopen her asylum case with the BIA based on changed country conditions and new information concerning another brother, who she claims was attacked by To *41 golese soldiers on account of his tribal membership. 8 C.F.R. § 1003.2(c). Ba-kuaya’s request for voluntary departure was denied by the IJ, and the BIA denied her motion to reopen. Her petitions for review of the BIA’s denial of her asylum application and her motion to reopen were consolidated in this court.

We review the BIA’s denial of Bakuaya’s asylum application under the substantial evidence standard, deferring to its findings “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.2003) (internal quotation marks and citations omitted). Bakuaya urges us to defer to the IJ’s findings, particularly with respect to its ultimate determination that she was credible, but where the BIA has not adopted the IJ’s findings our review is of the BIA’s decision, and our deference is owed to it. Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir.2004); Martinez v. INS, 970 F.2d 973, 974 (1st Cir.1992).

The parties focus much of their briefing on the BIA’s credibility finding, debating whether the admitted falsehoods in Bakuaya’s applications and testimony necessarily taint the entirety of her testimony. Credibility determinations are largely for the fact finder, and in any event even crediting arguendo Bakuaya’s un-recanted testimony at the hearing, the BIA’s denial of her asylum application would survive deferential review based on its alternative ground, namely, that those facts did not show a well-founded fear of persecution.

Thus, the evidence showed that Bakuaya had never herself been targeted in Togo. She was never a member of the UFC or otherwise politically active. The sole basis for her asserted fear of persecution in Togo was her familial and tribal connections. But as the BIA noted, her mother, brother, and sister continued to live in Togo, apparently unharmed. Indeed, her mother voluntarily returned to Togo after spending nearly a year and a half in the United States during the 1990’s, her brother was able to live in Togo and travel freely for business, and her sister was able to attend university in Togo.

While two of Bakuaya’s brothers fled Togo and obtained asylum abroad, one was apparently granted asylum in the United Kingdom as part of an effort to clear a backlog of asylum applications there; the other was granted asylum in the United States at least in part based on the same false testimony that Bakuaya presented and later recanted. Even if certain of Bakuaya’s politically active family members were targeted for their activities, the fact that several of her immediate family members continued to live in Togo indicates that Bakuaya’s familial and tribal associations do not alone give rise to a well-founded fear of persecution. See Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir.1999).

Nor was the BIA’s denial of her motion to reopen an abuse of discretion. See Luis v. INS, 196 F.3d 36, 39 (1st Cir.1999).

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533 F.3d 39, 2008 U.S. App. LEXIS 14883, 2008 WL 2719887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bakuaya-v-mukasey-ca1-2008.