Adiam Hebtemariam v. Eric Holder, Jr.
Filing
UNPUBLISHED OPINION FILED. [13-60275 Affirmed] Judge: WED , Judge: JWE , Judge: GJC. Mandate pull date is 08/11/2014 [13-60275]
Case: 13-60275
Document: 00512670589
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Date Filed: 06/19/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60275
United States Court of Appeals
Fifth Circuit
FILED
June 19, 2014
Lyle W. Cayce
Clerk
ADIAM HEBTEMARIAM,
Petitioner,
v.
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
USDC No. A201 106 874
Before DAVIS, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Adiam Hebtemariam, a citizen of Eritrea, filed an application for asylum,
withholding of removal, and withholding of removal under the Convention
Against Torture (“CAT”). The Immigration Judge denied the application. The
Board of Immigration Appeals also denied relief, agreeing with the
Immigration Judge’s adverse credibility determination as to Hebtemariam and
concluding that remand based on a new assertion was inappropriate because
that ground was previously available and discoverable. Hebtemariam now
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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seeks review of the Board of Immigration Appeals’ decision. Because we are
bound by our precedent and statute to defer to the agency’s credibility
determinations in this case and because we see no abuse of discretion in the
decision to deny remand, we deny Hebtemariam’s petition.
I.
In her original application for asylum, Hebtemariam stated that she
feared returning to Eritrea. According to her application, Hebtemariam feared
that she would be imprisoned, beaten, raped, or killed by the Eritrean
government and military because she left involuntary military service without
permission.
Hebtemariam denied, however, that she previously had been
harmed or mistreated.
The Immigration Judge held a merits hearing, where the following facts
unfolded. In July 2008, Hebtemariam was sent to the Sawa military facility to
complete the twelfth grade and three months of mandatory military training,
as required by Eritrean law. Hebtemariam explained that she was in the
“military service” in April 2009 when she fell ill and was sent home; she
received a “handwritten letter” from the military authorities to approve her
leave. Hebtemariam did not recall, however, telling the asylum officer that she
went home because she failed an exam. Hebtemariam returned to Sawa in
November 2009. At one point during the hearing, Hebtemariam testified that
she had finished the twelfth grade; at another, she testified that she had not.
It is also unclear whether Hebtemariam returned home a second time. Once
back at the Sawa facility, though, Hebtemariam landed a job in the kitchen.
Hebtemariam was not in the military, according to her testimony, but merely
stationed to work at the military facility.
During this stretch of time,
Hebtemariam alleges that she was constantly sexually harassed and was
raped by her superior, a man named Tsigiay. Hebtemariam knew that Tsigiay
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was in the military but did not know what rank he held. Hebtemariam stated
that Tsigiay always “hit” her and that the “punishment” for not obeying him
was “severe.” Hebtemariam testified, however, to only two concrete incidents
involving Tsigiay—one in which Tsigiay grabbed her arm and she ran away,
and the other involving the rape.
Later in her testimony, Hebtemariam
returned to the first incident and added that, after she ran away, Tsigiay
punished her by forcing her to stand outside in the heat all day. Hebtemariam
also later stated that Tsigiay never hit her.
Hebtemariam explained that “they”—i.e., the military authorities—“hit”
her, that the conditions at Sawa were bad, and that she therefore wished to
leave the country. Hebtemariam escaped unnoticed in November 2010 and
traveled to Sudan. Hebtemariam’s uncle arranged for a smuggler to transport
her to South America, and she then made her way through Central America to
the United States border, where she requested asylum. Hebtemariam recalled
having paid $2,400 for the leg of her trip from Panama to Mexico. Previously,
however, she stated that that portion of the journey had cost her $200.
Hebtemariam asserted that she would be imprisoned or killed if she was forced
to return to Eritrea because she had deserted the “national service” and
departed the country without permission.
The Immigration Judge denied her application for asylum, withholding
of removal, and withholding of removal under the CAT, finding certain aspects
of Hebtemariam’s story implausible.
The Board of Immigration Appeals
dismissed her appeal, explaining that the Immigration Judge’s adverse
credibility
determination
was
supported
by
Hebtemariam’s
lack
of
responsiveness as well as the inconsistencies between Hebtemariam’s asylum
application, interview with an asylum officer, and testimony before the
Immigration Judge. Specifically, the Board of Immigration Appeals concluded
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that there were inconsistencies regarding the circumstances of the rape, the
details of her punishment by her military superior for rebuffing his advances,
and her escape from Eritrea and subsequent travel to the United States. The
Board of Immigration Appeals observed that Hebtemariam had failed to come
forth with any corroborating evidence of past persecution. Moreover, the Board
of Immigration Appeals explained that Hebtemariam’s testimony regarding
her asserted conscription in Eritrea was inconsistent with country condition
evidence. Thus, even though the conditions in Eritrea indicated that deserters
are persecuted, in light of the adverse credibility determination, the Board of
Immigration Appeals concluded that Hebtemariam could not meet her burden
to establish that she would be identified and punished as a deserter.
In
conjunction with her appeal to the Board of Immigration Appeals,
Hebtemariam filed a motion to remand based on new evidence that she had
suffered female genital mutilation. The Board of Immigration Appeals denied
the motion because Hebtemariam failed to establish that the evidence was
material and could not have been discovered or presented at her original
hearing.
II.
A.
Under 8 U.S.C. § 1158(b)(1)(A), the Attorney General may grant
“asylum” to an alien who qualifies as a “refugee” under 8 U.S.C.
§ 1101(a)(42)(A). A refugee is a person who (1) is unable or unwilling to return
to his or her home country “because of persecution or a well-founded fear of
persecution” and (2) has demonstrated that “race, religion, nationality,
membership in a particular social group, or political opinion was or will be at
least one central reason for the persecution.” Orellana–Monson v. Holder, 685
F.3d 511, 518 (5th Cir. 2012) (emphasis and internal quotation marks omitted);
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see 8 C.F.R. § 208.13(b) (“The applicant may qualify as a refugee either because
he or she has suffered past persecution or because he or she has a well-founded
fear of future persecution.”). To establish a “well-founded fear,” the person
must demonstrate a subjective fear, and that fear must be objectively
reasonable. Sharma v. Holder, 729 F.3d 407, 413 (5th Cir. 2013). The person
must support the claim with “specific, detailed facts showing a good reason to
fear that he or she will be singled out for persecution.” Orellana–Monson, 685
F.3d at 518 (quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)). The
asylum standard is more lenient than the standard for withholding of removal;
therefore, a petitioner’s failure to establish asylum eligibility forecloses a claim
for withholding of removal. See Orellana–Monson, 685 F.3d at 518 (“The
standard for obtaining withholding of removal is even higher than the
standard for asylum, requiring a showing that it is more likely than not that
the alien’s life or freedom would be threatened by persecution on one of those
grounds.”). To obtain relief under CAT, “an applicant must show that it is more
likely than not that he would be tortured if returned to his home country.”
Zhang v. Gonzales, 432 F.3d 339, 344–45 (5th Cir. 2005) (internal quotation
marks omitted); see 8 C.F.R. § 208.16(c)(2).
We review the Board of Immigration Appeals’ findings of fact for
substantial evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009); see 8
U.S.C. § 1252(b)(4)(B) (“findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”). The findings
supporting the conclusion that an alien is not eligible for asylum, withholding
of removal, or relief under the CAT are factual. Zhang, 432 F.3d at 344.
Credibility determinations fall within the purview of the factfinder. Id.; see
also § 1158(b)(1)(B)(iii) (“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility determination on [1] the
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demeanor, candor, or responsiveness of the applicant or witness, [2] the
inherent plausibility of the applicant’s or witness’s account, [3] the consistency
between the applicant’s or witness’s written and oral statements . . . , [4] the
internal consistency of each such statement, [5] the consistency of such
statements with other evidence of record (including the reports of the
Department of State on country conditions), and [6] any inaccuracies or
falsehoods in such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim . . . .”). We
may not reverse factual findings unless “the evidence was so compelling that
no reasonable factfinder could conclude against it.” Wang, 569 F.3d at 537.
We conclude that the record does not require reversal here. Put another
way, under our binding precedent, the Board of Immigration Appeals’
affirmance of the Immigration Judge’s adverse credibility determination is
sufficiently supported by the record. Hebtemariam’s lack of responsiveness
before the Immigration Judge is reflected in the hearing transcript.
The
Immigration Judge repeatedly asked Hebtemariam to clarify her answers,
provide more specific details, and explain discrepancies; Hebtemariam
repeatedly responded with details that painted a vague and fluid story.
Hebtemariam omitted any details regarding her rape or sexual harassment in
her written application. In fact, Hebtemariam checked the box next to “No” in
answering the question, “Have you . . . ever experienced harm or mistreatment
or threats in the past by anyone?” This answer also conflicted with her later
statement that the military authorities and Tsigiay “hit” her. 1 The Board of
Immigration Appeals specifically discredited Hebtemariam’s claims that she
was conscripted into national service and that she escaped involuntary service,
Hebtemariam reversed course on this statement as well, stating before the
Immigration Judge that Tsigiay never hit her.
1
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pointing to the lack of corroborating evidence as well as the inconsistencies in
her explanation of her experiences at the Sawa facility.
For example,
Hebtemariam’s account of being in and out of the Sawa facility appeared to
evolve between the time she interviewed with the asylum officer and the time
she testified before the Immigration Judge. Any other inconsistencies in her
statements were appropriate grounds for evaluating her credibility, regardless
of whether the inconsistencies went “to the heart” of her claim.
See
§ 1158(b)(1)(B)(iii). Nothing in the record is “so compelling” so as to convince
us that “no reasonable factfinder” could have disbelieved Hebtemariam’s
testimony. We emphasize that, under the law and under these circumstances,
we are required to accept to the agency’s credibility determination, even if,
upon de novo review, we might not agree with the agency.
Moreover,
Hebtemariam has not identified any evidence showing that Eritrean
authorities are already aware, or could become aware, that she exited Eritrea
illegally—i.e., in a manner that would trigger persecution at the hands of the
Eritrean authorities.
Because the Board of Immigration Appeals’ factual
determinations withstand review, we conclude that substantial evidence
supports the decision to deny Hebtemariam’s asylum and withholding of
removal claims. See Orellana–Monson, 685 F.3d at 518.
Substantial evidence also supports the decision to deny Hebtemariam’s
CAT claim on account of her rape and desertion. The Board of Immigration
Appeals rejected Hebtemariam’s claims that she had been tortured in the past
or would be tortured in the future because it did not credit Hebtemariam’s
testimony regarding the circumstances of her rape and desertion from national
service. As explained in more detail above, these credibility determinations
withstand review. The country condition evidence indicates that the Eritrean
authorities have killed deserters, but Hebtemariam has not identified any
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evidence showing that the Eritrean authorities are already aware, or could
become aware, that she exited Eritrea illegally.
Therefore, we cannot
conclude that the country condition evidence alone compels the conclusion that
it is more likely than not that Hebtemariam would be tortured. See Zhang,
423 F.3d at 344–45.
B.
We consider motions to remand for the consideration of new evidence to
be the same, in substance, as motions to reopen removal proceedings.
Ramchandani v. Gonzales, 434 F.3d 337, 340–41 n.6 (5th Cir. 2005). We
review the Board of Immigration Appeals’ denial of such a motion for abuse of
discretion. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). “A motion to
reopen proceedings shall not be granted unless it appears to the [Board of
Immigration Appeals] that evidence sought to be offered is material and was
not available and could not have been discovered or presented at the former
hearing . . . .” 8 C.F.R. § 1003.2(c)(1); see also Fishaye v. Holder, No. 13-60422,
2014 WL 930593, at *2 (5th Cir. Mar. 11, 2014) (same).
The Board of
Immigration Appeals reasoned that Hebtemariam was not entitled to remand
of the removal proceeding for consideration of evidence of her genital
mutilation because this evidence was previously available and discoverable.
We conclude that the Board of Immigration Appeals did not abuse its discretion
by refusing to remand her removal proceeding, even in light of her pro se, incustody status and asserted ignorance of immigration law when she filed her
application.
Hebtemariam’s petition for review is DENIED.
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