Henri Ba v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2020
• Docket: 13-70876
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HENRI ANTOINE BA, No. 13-70876

Petitioner, Agency No. A079-267-329

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted December 10, 2019 Pasadena, California

Before: O’SCANNLAIN, PAEZ, and OWENS, Circuit Judges.

Henri Antoine Ba, a Senegalese citizen from the country’s southern region

of Casamance, petitions for review of the Board of Immigration Appeals’ (BIA’s)

denial of his application for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. §

1252(a). For the reasons explained below, we grant the petition and remand for

further proceedings.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The government argues that our jurisdiction is limited in light of the

Immigration Judge’s (IJ’s) determination—in the context of Ba’s subsequent

application for adjustment of status—that the statutory terrorism bar applies to

Ba’s asylum application. We disagree. Under 8 U.S.C. § 1158(b)(2)(D), we

cannot review the Attorney General’s determination that an applicant is ineligible

for asylum because of the statutory terrorism bar. See Bellout v. Ashcroft, 363 F.3d

975, 977 (9th Cir. 2004). But no such determination was made here. The BIA and

IJ denied Ba asylum on the basis of Ba’s credibility and declined to decide whether

the terrorism bar applied. Thus, 8 U.S.C. § 1158(b)(2)(D) does not limit our

review of the agency’s denial of Ba’s asylum application.1

2. Substantial evidence does not support the adverse credibility

determination underlying the denial of Ba’s application for asylum. See Diaz-

Jimenez v. Sessions, 902 F.3d 955, 958 (9th Cir. 2018).

The BIA and IJ both relied on discrepancies in Ba’s account regarding his

role with a regional separatist movement, Mouvement des Forces Démocratiques

de Casamance (“MFDC”). For pre-REAL ID Act claims like Ba’s asylum

application, “[i]t is well settled in our circuit that minor inconsistencies that do not

go to the heart of an applicant’s claim for asylum cannot support an adverse

1 We express no views on the applicability of the statutory terrorism bar, which the government may assert on remand.

2 credibility determination.” Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005).

But the discrepancies regarding whether Ba sold MFDC membership cards or

encouraged others to join the organization are “neither substantial nor go to the

heart of [Ba’s] claims of past persecution.” Morgan v. Mukasey, 529 F.3d 1202,

1207 (9th Cir. 2008). For example, Ba’s account of the persecution he experienced

involved witnessing a summary execution after being pulled off a bus due to his

Diola ethnicity. See generally Ndom v. Ashcroft, 384 F.3d 743, 748 (9th Cir. 2004)

(describing government persecution against ethnic Diola in Casamance). Ba’s

inconsistent testimony regarding his role with the MFDC “reveal[s] nothing about

[his] fear for [his] safety.” See Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.

2004); see also Guan v. Barr, 925 F.3d 1022, 1035 (9th Cir. 2019). To be sure, the

record supports Ba’s explanations for these inconsistencies, including that Ba

struggled with English, memory issues, and the effects of Post-Traumatic Stress

Disorder consistent with torture. But because these inconsistencies do not go to

the heart of Ba’s claim of past persecution in any event, they do not support the

adverse credibility determination here. See Yan Xia Zhu v. Mukasey, 537 F.3d

1034, 1043 (9th Cir. 2008).

The BIA and IJ also pointed to the several letters Ba offered in support of his

application. The letters—from Ba’s mother and two people Ba described as father

figures—generally support Ba’s account. Specifically, the letters note that Ba was

3 targeted by authorities, had witnessed confrontations with soldiers, faced “constant

harassment” by state authorities, would likely be killed by summary execution,

torture, or imprisonment if Ba returned, and that the situation in Casamance only

worsened after Ba’s departure. But the IJ found it to be significant that none of the

letters discussed Ba’s arrest fifteen years earlier. Initially, “[s]upplying

corroborating affidavits . . . has never been required to establish an applicant’s

credibility.” Lopez-Reyes v. I.N.S., 79 F.3d 908, 912 (9th Cir. 1996). And the IJ’s

opinion about what the letters should have contained—especially Ba’s uncle’s

letter, entitled “Re: Expression of New Year’s Wishes” and which did not discuss

Ba at all—constitutes “impermissible speculation and conjecture” that cannot

support an adverse credibility determination. Ge v. Ashcroft, 367 F.3d 1121, 1124

(9th Cir. 2004).

In sum, the inconsistencies upon which the BIA relied do not go to the heart

of Ba’s claim of past persecution and the independent evidence Ba provided

supports rather than contradicts his account. Accordingly, we hold that the adverse

credibility finding was not supported by substantial evidence. Having held that the

adverse credibility finding is not supported by substantial evidence, we will grant

the petition for review and remand to the BIA for a determination of whether Ba is

eligible for asylum, withholding of removal, or CAT relief. See Yan Xia Zhu, 537

F.3d at 1045–46.

4 Petition for review GRANTED and REMANDED.

5 FILED Ba v. Barr, No. 13-70876 JAN 17 2020 MOLLY C. DWYER, CLERK O’SCANNLAIN, Circuit Judge, dissenting: U.S. COURT OF APPEALS

Since I would dismiss Henri Antoine Ba’s petition with respect to his request

for asylum and deny his petition with respect to his requests for withholding of

removal and relief under the Convention Against Torture (CAT), I must respectfully

dissent from the court’s disposition.

I

I believe that we lack jurisdiction to review the denial of Ba’s asylum

application. The Board of Immigration Appeals’ (BIA’s) affirmance of the

Immigration Judge’s (IJ’s) determination that Ba is subject to the terrorism bar, 8

U.S.C. § 1182(a)(3)(B), forecloses his eligibility for asylum, id. § 1158(b)(2)(A)(v).

Such determination simply is not subject to judicial review. Id. § 1158(b)(2)(D).

The majority contends that we retain jurisdiction because the IJ determined

that the statutory terrorism bar applied “in the context of Ba’s subsequent application

for adjustment of status,” not his initial application for asylum. Maj. at 2.

Respectfully, I suggest that the majority is mistaken. Ba did not go through two

separate sets of proceedings—one for the asylum, withholding of removal, and CAT

relief, the other for adjustment of status. He was the subject of only one set of

proceedings, which the BIA reopened upon Ba’s request. Furthermore, there is

nothing more for the BIA to decide regarding Ba’s eligibility for asylum. Once the IJ found that Ba was subject to the terrorism bar, he was automatically ineligible for

asylum. No additional finding was required.

II

For the same reason, I would also deny his petition with respect to his requests

for withholding of removal and CAT relief in the form of withholding. Once an IJ

determines that an alien is covered by the terrorism bar, such alien is automatically

ineligible for withholding of removal, 8 U.S.C. §§ 1227(a)(4)(B), 1231(b)(3)(B)(iv),

and CAT protection in the form of withholding, 8 C.F.R. § 1208.16(d)(2). Because

the IJ determined (and the BIA affirmed) that Ba engaged in terrorist activities, he

was automatically made ineligible for these other forms of relief.

III

Even though Ba is subject to the terrorism bar, he is still eligible for CAT

relief in the form of deferral. 8 C.F.R. § 1208.17; see also Haile v. Holder, 658 F.3d

1122, 1125–26 (9th Cir. 2011) (“Aliens who have engaged in terrorist activities are

precluded from seeking several forms of relief from removal, including asylum,

withholding, and CAT protection in the form of withholding, but remain eligible for

deferral of removal under the CAT.”). With respect to such form of relief, I would

deny Ba’s petition because substantial evidence supports the adverse credibility

determination and the independent record evidence does not compel the conclusion

that Ba is more likely than not to be tortured if he returns to Senegal.

2 A

Because this is a pre-REAL ID Act case, an adverse credibility determination

must be based on a material discrepancy that goes to the heart of the applicant’s

claim. Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005). The majority contends

that the discrepancies in Ba’s testimony regarding his involvement with the

Mouvement des Forces Démocratiques de Casamance (MFDC) do not go to the heart

of his claims of past persecution. Maj. at 3. Once again, I respectfully suggest that

the majority is mistaken.

Ba’s claims of past persecution stem from the conflict in the Casamance. The

MFDC is a participant in that conflict. If the IJ found that there was reason to doubt

Ba’s testimony about his membership in a group that is a party to the conflict, then

it was reasonable for the IJ to question the credibility of Ba’s testimony about

persecution that he allegedly suffered in that same conflict. See Enying Li v. Holder,

738 F.3d 1160, 1162 (9th Cir. 2013) (holding that “an IJ may use the maxim falsus

in uno, falsus in omnibus . . . to find that material inconsistencies in testimony

regarding one claim support an adverse credibility determination on another claim

in a pre-REAL ID Act case”). For example, one of Ba’s claims of past persecution

is that he was injured by Senegalese soldiers in 1982 while participating in a protest

for Casamance independence. If the IJ found that Ba was not truthful about his

membership in a group that supports Casamance independence, then it was

3 reasonable for the IJ to doubt Ba’s claim that he was injured in a protest for that very

same cause.

Granted, it is possible that Ba participated and was injured in a protest for

Casamance independence but was not an active member of the MFDC. However,

we do not reverse the BIA’s factual findings based on the mere possibility of error.

We review factual findings, including adverse credibility determinations, for

substantial evidence. Lianhua Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014).

Here, the evidence does not compel the conclusion that the BIA’s adverse credibility

determination was erroneous. On the contrary, in light of the material inconsistencies

in Ba’s testimony about his membership in the MFDC, the BIA’s findings were

eminently reasonable.

B

Nor does the record evidence, standing alone, compel the conclusion that Ba

is more likely than not to be tortured if he returns to Senegal. Shrestha v. Holder,

590 F.3d 1034, 1048–49 (9th Cir. 2010).

For example, Ba offers up medical evaluations to prove that he was the victim

of torture. But while these evaluations state that Ba has had symptoms consistent

with torture, they do not establish that he was tortured, much less that he is more

likely than not to be tortured in the future.

4 Ba presents several letters in support of his application. Unlike the majority,

however, I do not think this evidence is helpful to Ba’s case. Maj. at 3–4. Ba’s uncle

describes his own torture and imprisonment but says nothing about Ba’s experiences.

Ba’s mother discusses her concerns about ongoing harassment from Senegalese

authorities, but she does not suggest that Ba is likely to be tortured if he returns. The

letter from Abbot Augustin Diamacoune Senghor appears to offer the most support

to Ba’s claims: It says that Ba is likely to be imprisoned, tortured, or executed if he

goes back to Senegal. However, the author of the letter was the Secretary General of

the MFDC—the same terrorist organization of which Ba has inconsistently claimed

to have been a member, hardly compelling evidence.

Finally, although the country reports included in the administrative record

suggest that Senegal is a troubled place where torture and other human rights abuses

have occurred, they do not compel the conclusion that Ba, specifically, is more likely

than not to be tortured if he returns.