Farah Mudathir Farah Taha v. John Ashcroft, Attorney General

362 F.3d 623, 2004 U.S. App. LEXIS 5903

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 31, 2004
• Docket: 02-73499
• Status: Published

Opinions

SCHWARZER, Senior District Judge:

Farah Mudathir Farah Taha (“Taha”) petitions for review of a Board of Immigration Appeals (“BIA” or “Board”) decision denying his applications for asylum, withholding of removal, and relief under Article 3 of the Convention Against Torture (“Convention”).¹ Taha argues that no substantial evidence supports the BIA’s denial of asylum and withholding of removal, that the BIA and immigration judge (“IJ”) violated his due process rights, and that the BIA erred by failing to independently evaluate his claim under the Convention. We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition for review.

FACTUAL AND PROCEDURAL HISTORY

Taha, a native and citizen of Sudan, applied for asylum and withholding of removal in December 1999. In support of his application, Taha submitted a seven-page, typewritten declaration describing himself as a member of the Umma Party and an active opponent of a series of military dictatorships in Sudan. Taha declared that government officials fired him from the Department of Transportation in November 1991 for opposing the regime, and unfairly arrested him in January 1994 for similar reasons. Taha did not aver that government agents ever physically harmed him, however, and stated that he was released after his January 1994 arrest upon requesting legal counsel.

Taha told a vastly different story in his testimony before the immigration court. He alleged for the first time that he was beaten by government police officers in March 1983 and was detained in 1985 and made to sign certain confessions. Taha additionally recounted an extreme act of persecution that took place in 1989, in which government agents allegedly forced him to sit on a small Coke or Pepsi bottle after he refused to sign incriminating statements. Taha testified that he was forced to sit on the bottle for seven hours, until he bled profusely, and that he later required corrective bowel surgery in Saudi Arabia.

Taha also testified to a far more dramatic and violent version of the 1994 incident than his application had alleged. Taha claimed that government agents seized him from his place of business, beat, handcuffed, and blindfolded him, and threatened to throw him to the bottom of a well. Taha stated that the agents then took him to a “ghost room,” or torture room, where they demanded that he sign another confession. When he at first refused, Taha was allegedly forced to walk through broken glass, beaten, stabbed with a bayonet through his leg and left wrist, and made to sit on broken glass until he lost consciousness, waking up the next morning on the street. None of these details appear in Taha’s declaration.

The IJ denied Taha’s application for asylum and withholding of removal, as well as his oral request for relief under the Convention. The IJ found Taha incredible based on his confusing and misleading testimony, failure to specify whether the persecution to which he testified had happened to him or to other people, and failure “to allege important events in his declaration that he alleged in his testimony.” On appeal, the BIA concluded that Taha “hampered” his credibility by failing to explain or resolve several substantial discrepancies between his testimony and declaration. As a result, the BIA held that Taha had not met his burden of demonstrating eligibility for asylum, withholding of removal, or relief pursuant to the Convention.

DISCUSSION

I.

We review the BIA’s decision that Taha has not established eligibility for asylum and withholding of deportation under the substantial evidence standard. Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000). The BIA’s determination must be upheld if supported by reasonable, substantial, and probative evidence in the record, and may be disturbed only if Taha establishes “that the evidence he presented was so compelling that no reasonable factfinder could fail to find[eligibility for asylum].” INS v. Elias-Zacarias, 502 U.S. 478, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

We review de novo claims of due process violations in removal proceedings. Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir.2003); Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002).

We review for substantial evidence the factual findings underlying the BIA’s determination that Taha was not eligible for relief under the Convention. See Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003); Kamalthas v. INS, 251 F.3d 1279, 1281 (9th Cir.2001).

II.

Taha first argues that the BIA’s opinion consists solely of eonclusory statements and is not supported by substantial evidence. Taha further submits that the discrepancies between his declaration and testimony were minor and revealed nothing about his fear for his safety. See Akinmade v. INS, 196 F.3d 951, 954 (9th Cir.1999) (“Minor errors or inconsistencies ... do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible, particularly where those inconsistencies reveal nothing about an applicant’s fear for his safety.”).

Taha’s arguments are unavailing. Far from relying solely on conclusory statements, the BIA explained the ways in which Taha’s testimony varied from his asylum application and thus hampered his credibility.² The Board specifically noted that Taha testified that government agents detained him in 1989, beat him, and forced him to sit on a small bottle, causing injuries which later required bowel surgery, but his asylum application made no mention of this alleged event. The BIA similarly explained that Taha testified that government agents detained him in January 1994, beat him, stabbed him, and forced him to walk on broken glass before throwing him out on the street. As the BIA noted, however, Taha’s application merely states that he was detained and interrogated, makes no mention -of any physical abuse, and avers that he was released on his own recognizance after requesting legal counsel. Taha’s argument that the BIA propounded no cognizable basis for its ruling must therefore fail: He plainly received individualized attention, and the BIA “heard, considered and decided” the relevant issues. See Villanueva-Franco v. INS, 802 F.2d 327, 330 (9th Cir.1986) (“[A]ll that is necessary is a decision that sets out terms sufficient to enable us as a reviewing court to see that the Board has heard, considered, and decided.”); see also Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995) (“All that we require is that the Board provide a comprehensible reason for its decision sufficient for us to conduct our review and to be assured that the petitioner’s case received individualized attention.”).

Nor may the discrepancies between Taha’s testimony and application regarding the alleged persecution in 1989 and 1994 be dismissed as minor inconsistencies and omissions relating to unimportant facts. See De Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997) (“Generally, minor inconsistencies and minor omissions relating to unimportant facts will not support an adverse credibility finding.” (citing Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996))). The 1989 and 1994 incidents form the very heart of Taha’s claim of past persecution and fear of future persecution. See id. at 393-94 (discrepancies not minor where they “relate[d] to the basis for [the claimant’s] alleged fear of persecution” and “involved the heart of the asylum claim”) (internal quotations omitted). Yet Taha did not even mention the 1989 incident in his application, and did not mention any violence in association with the 1994 incident. These major discrepancies cast serious doubt on whether the 1989 and 1994 incidents even occurred, and provide substantial evidence supporting the BIA’s determination that Taha did not establish eligibility for asylum. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000). Taha’s arguments to this court certainly do not compel a finding to the contrary. See Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812; Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003) (“Under [our] ‘extremely deferential’ standard, we ‘must uphold the [Board]’s findings unless the evidence presented would compel a reasonable finder of fact to reach a contrary result.’ ”) (quoting Singh-Kaur v. INS, 183 F.3d 1147, 1149-50 (9th Cir.1999)).³

III.

Taha additionally argues that the BIA and IJ violated his due process rights by failing to afford him a meaningful opportunity to address the inconsistencies between his asylum application and testimony before the immigration court. The Fifth Amendment guarantees due process to individuals who are subject to removal proceedings, Agyeman v. INS, 296 F.3d 871, 876-77 (9th Cir.2002), but we will reverse a BIA decision on due process grounds only “if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (internal quotations omitted).

No such fundamental unfairness took place here. Taha and his counsel spent the better part of a day on direct examination, but neither chose to address the discrepancies between Taha’s application and testimony. The government’s counsel then devoted his entire cross-examination to this issue, giving Taha ample opportunity to explain or address the discrepancies. Taha essentially gave no explanation for the discrepancies on cross-examination, however. Taha’s counsel then declined to conduct a redirect examination. Taha was thus given every reasonable opportunity to present his case before the IJ. Id. His failure to do so persuasively does not constitute a due process violation.

Nor did the BIA fail to afford Taha a meaningful opportunity to address the discrepancies on appeal. The IJ expressly found that Taha had “failed to allege important events in his declaration that he alleged in his testimony.” This finding put Taha on notice “that the veracity of [his] entire testimony was thrown into question,” and made it his responsibility “to explain all the inconsistencies in [his] testimony” before the BIA. Pal, 204 F.3d at 939. Taha nevertheless offered no explanation on appeal to the BIA, except that “cultural factors” caused his testimony to appear inconsistent and disjointed. The BIA considered and properly rejected this explanation, noting that Taha is an educated man, was represented by competent counsel, and was asked very specific questions during the proceedings. The BIA thus afforded Taha a reasonable opportunity to address the discrepancies between his application and testimony, and properly considered and ruled upon his proffered explanation.

Taha further contends that the IJ violated his due process rights by prejudging his claim and denying him a fair hearing. We have held that “[a] neutral judge is one of the most basic due process protections,” Reyes-Melendez, 342 F.3d at 1006, and reversed where “the IJ behaved not as a neutral fact-finder interested in hearing the petitioner’s evidence, but as a partisan adjudicator seeking to intimidate [the applicant] and his counsel.” Colmenar, 210 F.3d at 971.

The record demonstrates that the IJ may have had some preconceived notions about Taha and his claim even before he testified substantively, and then directed several inappropriate comments to Taha and his counsel during the hearing. While unfortunate, this behavior did not violate due process. We start from the presumption that the IJ was unbiased, see Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982), and recognize that

judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they ivill do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.... Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger ....

Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). The comments at issue here were plainly “expressions of impatience, dissatisfaction, annoyance, and even anger” rather than indications of “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Although the IJ frequently expressed her impatience and dissatisfaction with Taha and his counsel, she did not demonstrate bias or partiality until after Taha had finished presenting his case in chief on direct examination. At that point, of course, the IJ was entitled to make up her mind. As a result, the IJ’s actions did not indicate such a “high degree” of favoritism as to render a fair judgment impossible.

We have upheld due process challenges based in part on injudicious commentary only where the IJ “took over” the direct examination or otherwise denied claimants a reasonable opportunity to present their evidence. See Reyes-Melendez, 342 F.3d at 1004, 1006-07 (the IJ “took over” at least 38% of the direct examination); Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001) (the IJ “refused to allow the petitioner to introduce evidence that specifically contradicted some of his [the IJ’s] factual findings”). No such facts appear here. The IJ allowed Taha a very lengthy direct examination, did not bar him from testifying as to any subject, and never “took over” the examination. As a result, despite her inappropriate comments, the IJ permitted Taha a full and fair opportunity to present his case sufficient to satisfy his due process rights.

IV.

Finally, Taha relies on Kamalthas v. INS, 251 F.3d 1279 (9th Cir.2001), and Mansour v. INS, 230 F.3d 902 (7th Cir.2000), to argue that the BIA erred by failing to independently evaluate his claim for relief under the Convention.

In Kamalthas, we relied on Mansour to find that the BIA may not allow an adverse credibility finding to “wash over” a claim brought under the Convention where the evidence suggests an independent ground for granting such relief. 251 F.3d at 1284. We held that although the applicant, a member of the Tamil ethnicity/social group, had failed to establish asylum eligibility based on alleged past persecution by Sri Lankan police, the evidence suggested that “Tamil males have been subjected to widespread torture in Sri Lanka.” Id. The Mansour court similarly noted that regardless of the applicant’s asylum status, the evidence suggested “that the Iraqi government has engaged in abuses against the Assyrian Christians, a minority [of whom the applicant was a member], who are living in Iraq.” 230 F.3d at 907. Thus, where the evidence suggests that members of the applicant’s minority-group may be more likely than not subject to torture, the applicant’s specific credibility becomes largely irrelevant, and the BIA must conduct a separate evaluation under the Convention. Kamalthas, 251 F.3d at 1284; see also Al-Harbi v. INS, 242 F.3d 882, 891-94 (9th Cir.2001) (despite adverse credibility finding, Iraqi petitioner had a well-founded fear of future persecution because evidence of country conditions supported the conclusion that the Iraqi government would persecute as traitors any evacuees who returned to Iraq).

Kamalthas and Mansour are plainly distinguishable from the present facts. Taha has presented no evidence that he is a member of any ethnic, religious, or social minority suffering torture or other abuses by the Sudanese government. Taha’s claim under the Convention is instead based on the same testimony that the BIA found incredible. Taha points to no other evidence that the BIA should have considered in making its determination under the Convention. Therefore, because we affirm the BIA’s determination that Taha failed to establish eligibility under the Convention, we must similarly affirm its rejection of Taha’s claim under the Convention Against Torture.

PETITION DENIED.

1 . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as implemented by Pub.L. No. 105-277, § 2242, 112 Stat. 2681, 2681-821, see 8 C.F.R. 208.17 (2003).

2 . The government concedes that the BIA failed to make an explicit credibility finding. See Ordonez v. INS, 345 F.3d 777, 786 n. 5 (9th Cir.2003); Shoafera v. INS, 228 F.3d 1070, 1075 n. 3 (9th Cir.2000) ("[T]he law of this circuit does not permit implicit adverse credibility determinations.”). This issue may not form the basis of our ruling, however, because Taha did not raise it on appeal. Ordonez, 345 F.3d at 786 n. 5.

3 . Because Taha failed to satisfy the lesser standard of proof required to establish eligibility for asylum, he necessarily failed to demonstrate eligibility for withholding of deportation. Fisher v. INS, 79 F.3d 955 (9th Cir.1996) (en banc).