Fatoumata Sira Bah v. Alberto R. Gonzales

462 F.3d 637, 2006 U.S. App. LEXIS 22844, 2006 WL 2571393

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 8, 2006
• Docket: 04-3454
• Status: Published

Opinions

SILER, J., delivered the opinion of the court.

GIBBONS, J. (pp. 643-645), delivered a separate concurring opinion.

LAWSON, D.J. (pp. 645-650), delivered a separate opinion concurring in part and dissenting in part.

OPINION

SILER, Circuit Judge.

Petitioner Fatoumata Sira Bah seeks review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). This order affirmed an Immigration Judge’s (“IJ”) decision to deny her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We deny the petition for review.

I.

Bah is a native and citizen of Guinea. She claims that at the age of eight she was subjected to female genital mutilation (“FGM”). Additionally, she claims that she and her husband were members of the political party “Rally of the Guinean People” (“RPG”), an opposition party for which she claims her cousin Alpha Sow is a leader. She contends that she and her husband recruited new members to RPG and communicated decisions of the RPG leadership to the general membership.

Bah alleges that following the December 14, 1998, presidential election in Guinea, she and her husband attended an RPG meeting led by Sow. A demonstration was then held at party headquarters to protest the arrest of Alpha Condé, the RPG candidate. This demonstration was disrupted by the military and resulted in the arrest of many demonstrators, including Bah, who were detained at a military camp. She was initially placed in a large room with other detainees, but then was taken to a smaller room for questioning. She was later taken to a six square-foot cell equipped only with a bucket for personal use. After a night in the cell, she was released with the orders to cease demonstrating and to remain in town so as to be available for future questioning.

Upon her return home, Bah learned her husband was still detained. She claims she was questioned at her home every three days or so by three or four soldiers. She continued to participate in RPG activities which resulted in a second arrest in November 1999. She was ultimately taken to Sureté prison and placed in a small cell. She claims that evening she was beaten, leaving scars on her legs and ankles, and raped. She remained in Sureté for 18 months, during which time she was allegedly raped, interrogated about twice a month, and beaten about four times a month. She was released in May 2001 and supplied money for transportation.

At this time, Bah’s brother arranged her transportation to the United States. She entered the country without permission, utilizing false travel documents. She applied for asylum stating that she had been persecuted on account of her involvement with the RPG. Bah was interviewed by an Asylum Officer who determined that she was not credible. The Immigration and Naturalization Service served a Notice to Appear charging her with being removable under 8 U.S.C. § 1182(a)(6)(A)(I), as an alien present in the United States without having been admitted. Bah subsequently “admitted the factual allegations contained in the Notice to Appear, conceded remova-bility, and indicated an intention to apply for asylum, withholding of removal, and protection under the Convention.”

Following a hearing, the IJ issued an oral decision finding Bah removable and denying her applications for asylum, withholding of removal, and relief under the CAT. The BIA affirmed the IJ’s decision without written opinion under the streamlining procedure in 8 C.F.R. § 1003.1(e)(4) and designated the IJ’s decision as the final agency determination for purposes of review.

II.

The IJ has discretion to grant asylum to any alien who qualifies as a “refugee,” 8 U.S.C. § 1158(a) & (b), meaning an alien who is unable or unwilling to return to her home country “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). Even if the alien qualifies as a refugee the IJ may use his discretion to deny asylum. 8 U.S.C. § 1158(a) & (b). Therefore, a request for asylum involves a two-step inquiry: (1) determining whether the petitioner qualifies as a refugee, and (2) whether the petitioner merits a favorable exercise of discretion by the IJ. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004).

The IJ’s factual determination as to whether the alien qualifies as a refugee is reviewed under a substantial evidence test. Id. The IJ’s decision regarding eligibility for asylum is to be upheld if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). And reversal is available only if the petitioner presents evidence sufficient that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. Yu, 364 F.3d at 702; Ouda v. I.N.S., 324 F.3d 445, 451 (6th Cir.2003) (reversal allowed if the evidence presented “not only supports a contrary conclusion, but indeed compels it.”).

III.

A. “STREAMLINING”

Bah argues that the BIA’s brief dismissal of her appeal constituted a violation of her due process rights. However, the BIA has the authority to affirm, without opinion, or issue a brief opinion, in any case in which the Board member concludes that there is no legal or factual basis for reversal of the decision by the Service or the IJ. 8 C.F.R. § 1003.1.¹ This provision permits the BIA to issue summary affirmances in immigration appeals meeting certain criteria. Bah suggests that the use of streamlining ignores the “assumptions of Congress concerning the administrative foundations” of administrative review. “This court, however, has recently examined the use of summary affirmances, con-eluding that their use does not violate due process.” Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir.2004) (citing Denko v. INS, 351 F.3d 717, 726-30 (6th Cir.2003)).² Accordingly, the application of the streamlining process did not violate Bah’s due process rights.

B. BAH’S CREDIBILITY

For asylum, Bah “must demonstrate that [she] qualifies as a refugee by producing evidence that [she] has suffered past persecution or has a well-founded fear of future persecution.” Yu, 364 F.3d at 703. As stated above, the IJ’s determination of Bah’s credibility is reviewed under the highly deferential “substantial evidence” standard, and is reversed only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added). As in Yu, the decision of the IJ regarding Bah’s credibility should be upheld “because the IJ laid out numerous grounds for his adverse credibility finding.” 364 F.3d at 703.

The IJ noted discrepancies between Bah’s statements to the Asylum Officer during her earlier interview, her application, and her later testimony. Specifically, Bah claimed to be actively involved in the RPG to the point of attending national meetings of the party. She admitted, “I did not make decisions during these [headquarters] meetings, it was my job to inform the other members of the party of the decisions that had been made by the leaders and the reasons why these decisions had been made,” and that she made clothes for the party and recruited members. The IJ remarked that “her level of involvement would not seem to entitle her to go to the meetings in Matan, although, perhaps, as a cousin of [Sow], she had special dispensation.” When meeting with the Asylum Officer, however, she was neither unable to identify what the initials RPG stood for, nor was she able to describe the party logo. At her hearing before the IJ, she was able to identify the full name of the RPG, but was still unable to fully describe the logo.

Bah also stated in her application that only her husband was arrested at a protest on December 17, 1998, and that nearly a year later, on November 18, 1999, she was arrested and taken to Sureté. These claims were repeated in her interview with the Asylum Officer. However, both in her declaration and before the IJ she claims she was also arrested on December 21, 1998. Bah now contends that “this error was made by the person who originally filled out [the] asylum application, [and] that she did not correct it because she could not read English, and that she told the asylum officer the correct date.” However, a translation error does not reconcile that on two instances she stated that she and her husband were arrested, and on two other instances she claimed that the two of them were arrested eleven months apart. Additionally, in her application, she failed to “provide a detailed explanation of [her or her] relatives’ involvement” with RPG, as required; instead, she merely claimed, to be a member of RPG and a supporter of Alpha Condé.

Initially, she described soldiers equipped with gas masks “firfing] tear gas canisters among and all over the people” following the December 1998 demonstration. Before the IJ she described what seems to be pepper spray — “It’s something ... spicy, something like when you eat it, its spicy and hot.... It’s not actually gas,”'— sprayed into individual faces. There are also discrepancies regarding how she left the prison. In her initial application, she stated that on May 1, 2001, her brother arranged her escape from prison. At that time he told her that her house had been destroyed by the government and that her children were living with her mother in the village. Later, she stated that she was released for unknown reasons on May 2 and given 200 franc Guinea for cab fare. In this version, she arrives at her brother’s home where he informs her that she is to travel to America. There is no mention of the destruction of her house.

Finally, before the IJ, Bah rested her asylum claim in part on her fears that her four daughters would be subject to FGM. This claim was not articulated in her original application, nor was it apparently articulated to the Asylum Officer. It was, however, included in the declaration written after the interview with the Asylum' Officer. Bah states that she is fearful that her daughters will be subjected to FGM, and she wishes to prevent it, but that if they remain in Guinea she will not be able to. The IJ discounted Bah’s fears because she left her daughters in the care of her mother — who presumably ensured that Bah underwent the procedure — rather than seeking to either bring her daughters with her or find them alternative housing. According to a State Department Report, FGM is illegal in Guinea, and Bah has not shown that her family would subject her daughters to FGM over her opposition; however, Bah’s mother allegedly wrote: “you know that your daughters must be excised because they are old enough.”

The IJ’s determination that Bah lacked credibility was not based on overwhelming evidence; however, Bah has not met the “high standard of compelling a contrary result.” Yu, 364 F.3d at 700. Accordingly, the IJ’s decision is based on reasonable, substantial evidence.

C. FEMALE GENITAL MUTILATION

In Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir.2004), we noted that FGM has been internationally recognized as a violation of women’s and female children’s rights. Further, “as part of the Illegal Immigration Reform and Immigrant Responsibility Act [IRRIRA], Congress [has] criminalized the practice of female genital mutilation under federal law.” Id. at 638-39; see 18 U.S.C. § 116 (whoever “knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained 18 years” shall be fined or imprisoned). Here, Bah has testified that she underwent FGM when she was eight years old. This was verified by a doctor in Memphis.

Bah relies primarily upon Abay. However, Abay is of less aid then she believes. In Abay, we granted an alien mother asylum in her own right based on her fear that her minor daughter (also an asylum applicant) would be subjected to FGM if they were deported. Abay, 368 F.3d at 634. In reaching an affirmative conclusion, the court relied on case law in which deportation of an alien applicant would also remove an at-risk person. Id. at 642; see Matter of Dibba, No. A73 541 857 (BIA Nov. 23, 2001) (custodial alien mother granted asylum based on her fear that her citizen daughter would be subject to FGM in Gambia); Matter of Adeniji, 22 I. & N. Dec. 1102, 1999 WL 1100900, No. A41 542 131, (oral decision) (U.S. Dept, of Justice, Immigration Court, York, Penn., Mar. 10, 1998) (granting application for withholding of removal to alien father on grounds that his citizen daughters would be forced to return to Nigeria with him and would be subjected to FGM despite his wishes); Matter of Oluloro, No. A72 147 491 (oral decision) (U.S. Dept. of Justice, Immigration Court, Seattle, Wash., Mar. 23, 1994) (granting suspension of deportation to an alien mother because the risk that her U.S.-born daughters would be subjected to FGM in Nigeria “posed an extreme hardship” to the daughters).

Bah claims that if she were granted asylum, she would be able to bring her daughters here to protect them.³ Unfortunately, it seems she has performed her steps backward.⁴ Unlike Abay, Bah’s daughters are not in the United States. They are currently in Guinea, and are currently exposed to all accompanying risks of FGM. Unlike the parents in Ade-niji or Oluloro, her daughters are not citizens who would be removed with their custodial parent. Abay, 368 F.3d at 642 (“Normally a mother would not be expected to leave her child in the United States in order to avoid persecution.”) (citing Matter of Dibba, No. A73 541 857 at 2). Nor, as in Abay or Dibba, has she brought her alien daughters, with their independent FGM claims, into the United States. Abay, 368 F.3d at 642.

To the extent that Bah has based her asylum grounds on the fear that her daughters would be subjected to FGM if she is returned to Guinea, her case is distinguished from Abay. As noted above, her daughters are, in all likelihood, presently at risk. However, Bah has not removed them to the United States to seek asylum, instead choosing to leave them with those who she believes may harm them. Unlike Abay, her daughters are not here seeking asylum in their own rights based on their fears of FGM and persecution. Accordingly, Abay does not support Bah’s asylum argument.

Because Bah cannot show that she qualifies for asylum, she cannot meet the more stringent standards required to qualify for the protections of withholding of removal or under CAT. See Hassan, 403 F.3d at 435.

Petition for review DENIED.

1 . Pursuant to 8 C.F.R. § 1003.l(e)(4)(i), a single member of the BIA may affirm the decision of the II without opinion if the Board member determines that: (1) "the result reached in the decision under review is correct;” (2) "any errors in the decision under review were harmless or immaterial”; and (3) either that "(A) [t]he 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) [t]he factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case.” 8 C.F.R. § 1003. l(e)(4)(i).

2 . Additionally, we have stated that the "streamlined-affirmance-without-opinion procedure is not a dismissal, but instead a review of the merits of an appeal.” Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir.2005) (citing Denko, 351 F.3d at 729 (noting that streamlining cases receive full consideration from the BIA)).

3 . Should Bah receive asylum, her unmarried daughters, so long as they are younger than 21, 8 C.F.R. § 208.21(d), "also may be granted asylum if accompanying, or following to join ... unless it is determined that [they are] ineligible for asylum.” 8 C.F.R. § 208.21(a).

4 . Judge Sutton’s concurrence in Abay addressed his concerns that the majority appeared to state: "(1) that women or girls may never be deported to a country where the incidence of FGM within the female population as a whole is high, regardless of the risk that a particular applicant will be subjected to FGM, and (2) that the parents of such children may not be deported either.” 368 F.3d at 643 (Sutton, J., concurring).