Sarpong v. Lynch

650 F. App'x 48
CourtCourt of Appeals for the First Circuit
DecidedMay 25, 2015
DocketNo. 14-1075
StatusPublished
Cited by1 cases

This text of 650 F. App'x 48 (Sarpong v. Lynch) 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
Sarpong v. Lynch, 650 F. App'x 48 (1st Cir. 2015).

Opinion

LIPEZ, Circuit Judge.

Petitioner Bernice Sarpong, a native and citizen of Ghana, seeks judicial review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from an Immigration Judge’s (“IJ”) denial of her applications for withholding of removal and protection under the Convention Against Torture (“CAT”). Concluding that the agency’s decision is supported by substantial evidence, we deny the petition.

I.

We briefly summarize petitioner’s account, set forth the procedural history of this petition for judicial review, and describe the legal framework applicable to it. In 2001, petitioner’s pastor sent her, along with other church members, to the villages surrounding the city of Kumasi to work with homeless girls. While there, she counseled local girls to help them avoid being drawn into prostitution or the drug trade. A local criminal gang perceived this as a threat, and warned that petitioner would be harmed if she continued to interfere with its prostitution and drug business. When she did not relent, the gang began a series of violent attacks and threats on petitioner, continuing from 2002 until she left Ghana in 2006, These included a violent beating in January 2002, a kidnapping that April, and an attack that June .in which petitioner was gang raped and forcibly circumcised.

Petitioner entered the United States lawfully in 2006, but was charged with removability in 2009 based on overstaying her non-immigrant visa. Conceding remov-ability, and having missed the deadline to apply for asylum, she applied for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3), and protection under the CAT.

To succeed on either claim for relief, petitioner had to establish a likelihood that she would be harmed if she ieturned to Ghana.1 Specifically, with regard to withholding of removal, petitioner had to show that her “life or freedom would be threatened.” Costa v. Holder, 733 F.3d 13, 16 (1st Cir. 2013) (quoting 8 U.S.C. § 1231(b)(3)(A)). To prevail on her CAT claim, she had the burden of showing that she would “more likely than not ... be tortured.” Id. at 17.

After an evidentiary hearing, the IJ found petitioner’s testimony to be incredible based on inconsistencies between her oral testimony and her written statement. The IJ also determined that petitioner provided insufficient corroboration for her account. The IJ accordingly denied petitioner’s application for relief. The BIA dismissed her appeal in a separate opinion. Though it conducted its own analysis, the BIA agreed with the IJ that petitioner’s [50]*50testimonial inconsistencies justified an adverse credibility determination, and that she failed to provide necessary corroboration.

Petitioner argues that the BIA erred in finding that she failed to meet her burden to establish a likelihood of harm. She asserts that any inconsistencies in her account were immaterial, and that the BIA failed to consider the totality of the circumstances as required by law.

Where, as here, the BIA “does not summarily adopt the IJ’s decision,” Sou v. Gonzales, 450 F.3d 1, 6 (1st Cir. 2006), or “defer[] to or adopt[] the IJ’s reasons,” Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004), we review the BIA’s decision alone. See Halo v. Gonzales, 419 F.3d 15, 18-20 (1st Cir. 2005). An independent decision by the BIA “is the final administrative order reviewed by the court.” Sou, 450 F.3d at 6.

We consider whether the agency’s conclusions, including its findings on credibility and the failure to provide corroborating evidence, are supported by substantial evidence in the administrative record. See Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012); Balachandran v. Holder, 566 F.3d 269, 273 (1st Cir. 2009); 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”). We review interpretations of law de novo, “but with some deference to the agency’s reasonable interpretation of statutes and regulations that fall within its sphere of authority.” Jianli Chen, 703 F.3d at 21.

Applicants for withholding of removal, or protection under the CAT, bear the burden of proving that they merit such relief. Soeung v. Holder, 677 F.3d 484, 487 (1st Cir. 2012); 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1208.16(b), (c)(2). An IJ may grant relief based on the applicant’s testimony alone, if it is deemed credible. 8 C.F.R. § 1208.16(b), (c)(2); see Soeung, 677 F.3d at 487; 8 U.S.C. § 1229a(c)(4)(B). In evaluating credibility, an IJ “[cjonsider[s] the totality of the circumstances, and all relevant factors,” and “may base a credibility determination on the demeanor, candor, or responsiveness of the applicant ... the inherent plausibility of the applicant’s ... account, the consistency between the applicant’s ... written and oral statements ... the internal consistency of each such statement ... or any other relevant factor.” 8 U.S.C. § 1229a(c)(4)(C) (as amended by the REAL ID Act, Pub. L. No. 109-13,119 Stat. 302 (2005)).

Credible testimony is not always sufficient, however. Even where an applicant’s testimony is “otherwise credible,” an IJ may “determinen that the applicant should provide” corroborating evidence, or a “demonstration] that [she] does not have the evidence and cannot reasonably obtain [it],” Id. § 1229a(c)(4)(B); see Soeung, 677 F.3d at 488. Where an IJ explicitly finds that “it was reasonable to expect the applicant to produce corroboration” and “the applicant’s failure to do so was not adequately explained,” an application for relief may be dismissed. Soeung, 677 F.3d at 488; accord Chhay v. Mukasey, 540 F.3d 1, 6-7 (1st Cir. 2008). Such a finding is entitled to special deference under the REAL ID Act. 8 U.S.C. § 1252(b)(4) (“No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in ... [§ ] 1229a(c)(4)(B) ...

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650 F. App'x 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarpong-v-lynch-ca1-2015.