Boubakf Darme v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 30, 2021
• Docket: 18-72457
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BOUBAKF DARME, AKA Boubacar No. 18-72457 Drame, 19-73094

Petitioner, Agency No. A208-930-085

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted December 8, 2020 Seattle, Washington

Before: BERZON, MILLER, and BRESS, Circuit Judges. Concurrence by Judge MILLER Dissent by Judge BERZON

Boubacar Drame, whom the Board of Immigration Appeals identified as

“Boubakf Darme,” petitions for review of the Board’s dismissal of his appeal from

the immigration judge’s denial of his application for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT). Drame also

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. petitions for review of the Board’s denial of his motion to remand, as well as its

denial of his motion for reconsideration. We have jurisdiction under 8 U.S.C.

§ 1252(a)(1). We consolidated Drame’s petitions, and we deny both.

1. Substantial evidence supports the agency’s adverse credibility finding

and, consequently, its conclusion that Drame is not entitled to asylum or

withholding. See Mukulumbutu v. Barr, 977 F.3d 924, 925–27 (9th Cir. 2020). The

record reflects salient inconsistencies between Drame’s testimony and other

statements concerning whether he was hospitalized after his half-brothers beat him,

where he lived while arranging his departure from Senegal, and why he was unsafe

at his mother’s house even though his half-brothers refused to go there. The

explanations Drame advances for those inconsistencies are not “so compelling that

no reasonable factfinder could find that [he] was not credible.” Malkandi v.

Holder, 576 F.3d 906, 917 (9th Cir. 2009) (quoting Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003)). And the agency reasonably relied on the summary of

Drame’s credible-fear interview as an impeachment source because it bears

sufficient indicia of reliability—it was “conducted under oath, with

contemporaneous notes containing the questions asked,” and with the “aid of a[]

[Wolof] interpreter.” Mukulumbutu, 977 F.3d at 926; see also Matter of J-C-H-F-,

27 I. & N. Dec. 211, 213–15 (B.I.A. 2018).

2. Substantial evidence supports the agency’s decision to deny CAT

2 relief. An adverse credibility determination is not necessarily fatal to a CAT claim.

Kamalthas v. INS, 251 F.3d 1279, 1283–84 (9th Cir. 2001). But when the

petitioner is found not credible, we may reverse the agency’s denial of CAT relief

only if the record apart from the petitioner’s testimony compels the conclusion that

it is more likely than not that the petitioner would be tortured. Shrestha v. Holder,

590 F.3d 1034, 1048–49 (9th Cir. 2010). Without the benefit of Drame’s

testimony, the record does not compel that conclusion. Id. at 1049. Drame

emphasizes that he submitted an expert report on country conditions along with his

motion to remand, but the report stated that its analysis was “[b]ased on the events

Mr. Drame describes in his testimony,” and therefore it does not independently

compel a conclusion in Drame’s favor. Nor did the Board overlook the report. To

the contrary, the Board specifically cited the page of Drame’s brief on which he

discussed the report, and it stated that “[i]n light of the adverse credibility finding,

[Drame] has not submitted sufficient objective evidence of record to show that any

Senegalese official has any interest in torturing him or would acquiesce in any

torture of him.” Whether or not we would have reached the same conclusion were

we weighing the evidence ourselves, we are unable to say that the record compels a

contrary conclusion.

3. The proceedings before the immigration judge did not violate

Drame’s due process rights. In immigration proceedings, “[a] due process violation

3 occurs where (1) the proceeding was so fundamentally unfair that the alien was

prevented from reasonably presenting his case, and (2) the alien demonstrates

prejudice, which means that the outcome of the proceeding may have been affected

by the alleged violation.” Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012)

(quoting Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009)).

The alleged translation errors at the hearing did not deprive Drame of due

process because he has not shown that a better translation could have changed the

outcome. See Gutierrez–Chavez v. INS, 298 F.3d 824, 830 (9th Cir. 2002),

amended by 337 F.3d 1023 (9th Cir. 2003). The translation errors Drame identifies

are minor differences mostly on peripheral issues, few of which relate to the

adverse credibility finding.

The immigration judge did not prevent Drame from presenting his case by

failing to develop the record, refusing to allow Drame to testify on his own behalf,

failing to inform Drame of the requirement for corroborating evidence, or evincing

any bias or hostility towards him. The merits hearing transcript is replete with

open-ended and follow-up questions from the immigration judge on all matters of

import, and Drame does not identify any material aspects of his story that the

immigration judge failed to elicit. Drame also was informed on several occasions

that he needed to gather evidence to support his claims. To the extent that the

immigration judge “was unfriendly, confrontational, or acted in an adversarial

4 manner,” the exchanges that Drame identifies do not show that the immigration

judge was biased or hostile to such a degree that Drame was prevented from

presenting his case. Rizo v. Lynch, 810 F.3d 688, 693 (9th Cir. 2016).

Nor was Drame denied due process because of ineffective assistance of

counsel. We assume, as the Board did, that Drame was represented in at least some

capacity by a free legal services provider, Esperanza Legal Services, or by an

Esperanza legal assistant who visited Drame once in detention under the

supervision of an Esperanza attorney. See Najmabadi v. Holder, 597 F.3d 983,

986–87 (9th Cir. 2010). But Drame has not shown that the outcome of his case

would have differed had the legal assistant completed Drame’s entire Form I-

589—the only “legal representation” he received and all that his purported “oral

contract” with Esperanza covered. The immigration judge completed that form in

detail with Drame at the merits hearing, and Drame does not persuasively argue

that the immigration judge would have found him credible if Esperanza had done

more in this respect. Nor has Drame shown that the supervising attorney was so

ineffective in his supervision of the assistant “as to have impinged upon the

fundamental fairness of the hearing.” Magallanes-Damian v. INS, 783 F.2d 931,

933 (9th Cir. 1986).

4. The Board did not abuse its discretion in denying Drame’s motion to

remand to consider, among other matters, new country-conditions evidence

5 showing the persecution of gay people in Senegal and medical documents showing

that Drame experiences headaches. See Maravilla Maravilla v. Ashcroft, 381 F.3d

855, 857 (9th Cir. 2004). We presume that the Board has reviewed the record, and

it was Drame’s burden to demonstrate otherwise. Fernandez v. Gonzales, 439 F.3d

592, 603 (9th Cir. 2006). Here, the Board recognized that Drame had filed

“additional documentary evidence” and determined that the “evidence of record”

did not meet Drame’s burden to establish relief. Cf. Larita–Martinez v. INS, 220

F.3d 1092, 1096 (9th Cir. 2000). Because Drame’s asylum, withholding, and CAT

claims were all based almost exclusively on his discounted testimony, it was not

arbitrary, irrational, or contrary to law for the Board to determine that Drame had

not carried his “‘heavy burden’ of proving that, if proceedings were reopened, the

new evidence would likely change the result.” Young Sun Shin v. Mukasey, 547

F.3d 1019, 1025 (9th Cir. 2008); see also Almaghzar v. Gonzales, 457 F.3d 915,

921–22 (9th Cir. 2006).

PETITIONS DENIED.

6 FILED Darme v. Garland, Nos. 18-72457; 19-73094 MAR 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MILLER, Circuit Judge, concurring:

I join the court’s disposition and reasoning in full. As the court explains,

because the agency’s adverse credibility finding is supported by substantial

evidence, we must deny the petition.

In his brief, Drame states that he is now married to a man. Given the country

conditions evidence pertaining to the treatment of gay men in Senegal, that fact

may be significant because it provides an independent basis—separate from

Drame’s discredited testimony—for concluding that he may be subject to

persecution. But that fact is not part of the administrative record, and our review is

limited to the record before the agency. The appropriate mechanism for presenting

new evidence is a motion to reopen filed with the agency, not a brief filed in this

court. FILED Darme v. Garland, Nos. 18-72457; 19-73094 MAR 30 2021 MOLLY C. DWYER, CLERK BERZON, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I respectfully dissent. I would grant the petition and remand for further

consideration of Drame’s ineffective assistance of counsel claim and of the

documentary evidence of country conditions he provided in his motion to remand.

1. The Board dismissed Drame’s ineffective assistance of counsel claim

because Drame had “not sufficiently shown inadequate performance or the

required prejudice.” Our review is limited to the ground relied on by the Board,

Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam), so, like the

Board and the majority, I assume Esperanza Legal Services provided Drame

representation in some capacity. On that assumption, I would hold the Board erred

in determining there was no inadequate performance or prejudice.

“To prevail on a due process challenge to deportation proceedings, [Drame]

must show error and substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000). “Substantial prejudice is established when ‘the outcome of the

proceeding may have been affected by the alleged violation.’” Grigoryan v. Barr,

959 F.3d 1233, 1240 (9th Cir. 2020) (quoting Colmenar v. INS, 210 F.3d 967, 971

(9th Cir. 2000)).

The IJ’s adverse credibility determination—on which the outcome of all his

applications relied—was based in part on the fact that Drame’s “claim . . . varied

1 dramatically from his statements at the credible fear interview,” and that he “was

unable to provide any explanation for these inconsistencies.” Drame has

subsequently explained many of the inconsistencies cited by the IJ and provided

evidence that the Wolof interpretation at his hearing was poor. The retranslation he

offers shows several truncated and garbled translations with inconsistent details. I

agree with the majority that the explanations “are not ‘so compelling that no

reasonable factfinder could find that [he] was not credible,’” Opinion at 2 (quoting

Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009)). But they are sufficient to

conclude that had Esperanza advised Drame to or assisted him in filing a FOIA

request to review his credible fear interview, Drame may have been able to offer

more coherent testimony to the IJ. This conclusion does not mean that Drame

would have been prompted to lie by having a copy of his credible fear interview,

but that he may have been better prepared so that his testimony was not “vague” or

“lack[ing] detail” on the inconsistencies the IJ identified.

For example, Drame now explains that the actual assault lasted twenty to

thirty minutes, but the full confrontation with his relatives in the market lasted for

roughly an hour. This account is a plausible explanation, particularly given the

difficulty of determining exactly how long a beating lasted, and Drame may have

been able to be more specific in his testimony at the hearing if he had access to the

credible fear notes. Those notes also indicate that he spent two days in the hospital

2 after being beaten, but he later testified that he went to a clinic’s pharmacy two

times to get painkillers. Given language differences and the poor translation

throughout the record, the differences between “clinic” and “hospital” and “on two

days” and “for two days” are possible to credit to translation or to cultural

understanding. Similarly, the difference between “calling” someone on the phone

and “calling on” someone at their home, which the IJ and BIA treated as a change

in testimony, relies on a subtle linguistic distinction. Had Drame been prepared to

give testimony taking these subtleties into account, he may have affected the

credibility determination and thus the outcome of the proceedings. See Colmenar,

210 F.3d at 971.

I would therefore remand for a determination in the first instance of whether

Esperanza or either Dominguez or Arellano were acting as Drame’s counsel.

2. I would also grant the petition as to Drame’s motion to remand for

consideration of his CAT claim. The Board ignored significant country conditions

evidence that could support a determination that Drame would more likely than not

be tortured with the acquiescence of the government if he is removed to Senegal.

As the majority correctly notes, a negative credibility determination does not

preclude relief under CAT. Kamalthas v. INS, 251 F.3d 1279, 1283–84 (9th Cir.

2001). The majority nevertheless discounts Dr. Walker-Said’s expert report

because it analyzed risk to Drame “[b]ased on the events Mr. Drame describes in

3 his testimony.” Opinion at 3. The report focuses on the treatment of gay men, and

particularly Muslim gay men, in Senegal, discussing in that context the plausibility

of Drame’s account given the social conditions of Senegal and the likely future

harm to Drame given his testimony. For example, the report explains that “persons

who flout Muslim tradition are not only disinherited by their kin and community,

they are also often intimidated, or even killed, in retribution for disrupting

community norms and expectations,” and that law enforcement “would actually be

motivated to help [Drame’s] community mete out his punishment, since his

sexuality and lifestyle is viewed as forbidden at all levels of Senegalese society.”

This report is much more detailed and specific than the general country conditions

report Drame initially provided. Notably, the IJ’s adverse credibility finding did

not contest Drame’s sexuality, and Drame is now married to a man, putting him at

risk of the violence Dr. Walker-Said described.

The Board’s decision referenced the “additional documentary evidence,” but

its discussion of the motion to remand focused on the ineffective assistance of

counsel claim and only briefly mentioned that “the purported expert opinion on

country conditions do[es] not address or explain the noted inconsistencies that

formed the basis of the Immigration Judge’s adverse credibility finding.” This

analysis improperly relies on the adverse credibility determination and ignores the

specific and probative evidence in the expert affidavit about the treatment of gay

4 men in Senegal. We have held that the BIA abused its discretion when it has failed

to consider evidence in the record of torture of specific groups of which the

petitioner is a part, even given a negative credibility determination. Kamalthas,

251 F.3d at 1283–84 (remanding given evidence of widespread torture of Tamil

males in Sri Lanka); Guan v. Barr, 925 F.3d 1022, 1036 (9th Cir. 2019)

(remanding to consider evidence of torture of Chinese Christians). I would

therefore grant the petition and remand for the Board to properly consider the

country conditions evidence Drame provided.