Joumaa v. Ashcroft, (1st Cir. 2004)

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Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit





No. 03-2382

DANI LAHOUD JOUMAA,

Petitioner,

v.



JOHN ASHCROFT, Attorney General,

Respondent.





PETITION FOR REVIEW OF THE FINAL ORDER OF REMOVAL

BY THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lynch, Howard, Circuit Judges.

Derege B. Demissie on brief for petitioner.

Erica A. Franklin, Attorney, Civil Division, Department of

Justice, Peter D. Keisler, Assistant Attorney General, Civil

Division, and M. Jocelyn Lopez Wright, Senior Litigation Counsel,

Office of Immigration Litigation, on brief for respondent.

September 7, 2004

LYNCH, Circuit Judge. Dani Lahoud Joumaa, a native and

citizen of Lebanon, entered the United States on December 4, 2000,

as a transit visitor from El Salvador to Madrid without a visa to

enter the United States. He presented himself to U.S. officials at

the Miami airport and requested political asylum.

On December 22, 2000, the former Immigration and

Naturalization Service (INS) initiated removal proceedings against

Joumaa by issuing a Notice to Appear, charging him with being

removable from the United States. Represented by counsel and

testifying through a translator at his removal hearings, the

petitioner conceded removability, applied for political asylum and

withholding of removal, and requested protection under the

Convention Against Torture (CAT).

On February 5, 2002, the Immigration Judge (IJ) denied

his claims after finding that the petitioner was not credible and

had failed, in any event, to establish eligibility for asylum,

withholding of removal, and protection under the CAT. The Board of

Immigration Appeals (BIA) affirmed, without opinion, the IJ's order

and dismissed petitioner's administrative appeal. On October 9,

2003, Joumaa petitioned this Court for review of the BIA's order.

We now affirm.

I.

We summarize the evidence presented by Joumaa based on

the record of the removal proceedings.

Joumaa testified that he is a Maronite Christian and

conceded that this is the same religion as that of the then-president of Lebanon. He joined the Lebanese Forces, which he

characterized as a non-governmental Christian political party, in

1989, and worked as a driver with Raji Abdo, who was the second in

command in the Jabal area, for two years between 1989 and 1991. He

testified he was still a member of the Lebanese Forces when he left

Lebanon. When questioned about how he remained a member if the

Lebanese Forces were disbanded in 1991 (as he said), his reply was

that it was disbanded as a military force but still met privately.

In his testimony, he also referred to the Lebanese Forces as the

Lebanese army, and then said that was a mistake.

As the basis for his claims, Joumaa recounted two

occasions when he suffered problems that he said resulted from his

membership in the Lebanese Forces. The first incident occurred in

September 2000 in El Chibar Mayfouq. Joumaa and about 15,000

others were present at a public rally "to attend the prayers for

the Lebanese martyrs." Joumaa testified that "an armed force from

the Lebanese government supported by Syrian military people" began

arresting people in order to stop the prayers, which called for the

Syrians to leave Lebanon. Joumaa thought the armed forces included

Syrians because they, the Syrians, wore civilian clothing instead

of the Lebanese military uniform. Joumaa first said that about 200

people were arrested on this occasion, and then said that number

was too much; he had only been estimating. In his affidavit, he

stated flatly that over 200 Christians had been "kidnapped [sic]"

that day. He ran, along with the others, to avoid being arrested.

He successfully escaped to a friend's house. When asked if this

incident was written up in any newspapers, he said "it was not

supposed to be in the paper." As to his period in hiding, he first

said people had harmed him and then said nothing had happened to

him but he was afraid. He also said that he talked about the

Mayfouq incident with an officer of the Lebanese Forces in 2000.

The second incident occurred later, on September 26,

2000. Joumaa testified that while driving on a highway, a black

car without plates "tried to catch" him. He thought the people in

the car were Syrians because "nobody would be in such cars except

the Syrians." He heard the sound of guns behind him shooting in

his direction. He saw a pistol.

After this car chase, Joumaa hid at a friend's house. He

called his parents and learned from his mother that after the

prayer event in Mayfouq, the Syrians had come to his parents' house

twenty times within two weeks to look for him. Joumaa testified

that the Syrians threw his mother to the ground and told her that

they wanted Joumaa "alive or dead."

Joumaa testified that he stayed in hiding in Lebanon

until he flew from Lebanon to Egypt, and from there he eventually

arrived in El Salvador, after several stops along the way. At a

stopover in Miami during his trip from El Salvador to Madrid, he

requested political asylum from U.S. officials at the airport.

Joumaa testified that he was afraid when he was in hiding

but nothing happened to him. His family continues to live in

Lebanon, and his parents and siblings, also Maronite Christians,

have not been harmed.

II.

When the BIA affirms the IJ's order without opinion, the

appellate court reviews the findings and conclusions of the IJ as

the final agency determination. Albathiani v. INS, 318 F.3d 365,

373 (1st Cir. 2003).

The IJ found Joumaa's version of these events to be

"incredible, ... non-plausible." In particular, the IJ found the

car chase incident "not plausible within the course of everyday

reason" because "to the extent that a car with Syrian troops wished

to kill [Joumaa] and pulled up next to him and fired shots at him,

there is practically no way in the realm of reason that [he] could

have escaped the attack." The IJ also disbelieved the testimony

regarding Joumaa's attendance at the prayer meeting in Mayfouq,

pointing out that Joumaa gave no corroborative evidence. As for

the testimony that Syrian forces came to Joumaa's parents' house

twenty times in two weeks and told his mother that they wanted

"[her] son alive or dead," the IJ concluded that the alleged

behavior of the Syrian forces "does not make any sense" if their

intent was truly to either capture Joumaa or kill him. "What

better way of not finding [Joumaa] than to indicate to his mother

that they wanted him dead or alive[?]"

Furthermore, the IJ concluded that even if Joumaa's

testimony were considered credible, it was not persuasive and

failed to establish that he had a well-founded fear of persecution

or that his life would be threatened. The IJ described Joumaa's

statements as "general and meager ... unsubstantiated and

conjectural at best and non-persuasive at the very least." In

particular, the IJ noted that even assuming that the Mayfouq

incident occurred the way Joumaa described it, it did not have much

weight since he would be "just one of 15,000 people who ran

away...."

The IJ found no evidence that Joumaa would face torture

if he went back to Lebanon.

Accordingly, the IJ denied Joumaa's application for

asylum, withholding of removal, and protection under the CAT.

III.

We review the IJ's decision under the deferential

substantial evidence standard. INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992). The decision "must be upheld if supported by

reasonable, substantial, and probative evidence on the record

considered as a whole." Id. (internal quotation omitted). The

factual findings of the IJ are "conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary." 8

U.S.C. § 1252(b)(4)(B).

We address in sequence Joumaa's challenges to (i) the

IJ's adverse credibility determinations against him, and (ii) the

IJ's conclusion that even if the evidence were credible, he failed

to establish eligibility for asylum, withholding of removal, and

protection under the CAT.

A.

We review the IJ's credibility determinations with

deference, subject to the condition that they are supported by

specific findings in the record. See El Moraghy v. Ashcroft, 331

F.3d 195, 205 (1st Cir. 2003). "[W]hen a hearing officer who saw

and heard a witness makes an adverse credibility determination and

supports it with specific findings, an appellate court ordinarily

should accord it significant respect." Aguilar-Solis v. INS, 168

F.3d 565, 571 (1st Cir. 1999)

Joumaa challenges the IJ's credibility determinations on

two grounds: (i) the IJ made findings against the weight of the

evidence by misunderstanding his testimony and (ii) the IJ

committed reversible error by requiring corroborating evidence to

establish Joumaa's credibility.

Upon the first ground, Joumaa contends that the IJ failed

to meet the substantial evidence standard because his findings were

premised upon faulty understanding of the testimony at the time of

the hearing. Examination of the record, however, shows that Joumaa

had the opportunity to clarify any misunderstanding but failed to

do so, and we cannot say from the evidence that the IJ's

understanding is unsupported. In his brief, Joumaa makes much of

the fact that the IJ, during the hearing, misunderstood his

testimony regarding the black car incident to mean that "a black

car full of Syrians pulled up next to [him] and [shot] at [him]"

when he only meant that the black car was following him and he

heard the sound of gunshots. Joumaa's actual testimony was, "All

of the sudden I was caught by another car .... And then I heard the

sound of guns behind me" (emphasis added). At that point in the

record, the IJ paused the hearing and cautioned Joumaa to testify

"accurately." The IJ explained his understanding of what Joumaa

was saying, and asked for clarification and "the truth as to what

happened." If there was a misunderstanding, Joumaa had ample

opportunity right then to correct the IJ, but the record shows no

attempts to do so. Twice the IJ asked Joumaa whether the men in

the black car were shooting at Joumaa and twice the IJ asked Joumaa

whether he saw the firearms. The IJ never received an unambiguous

answer. Indeed, interview notes show that Joumaa told an INS

officer that the black car "intercepted me." Given Joumaa's

ambiguous phrasing, failure to clarify, and claim that the Syrian

forces wanted him "alive or dead," the IJ's interpretation of

Joumaa's testimony (and subsequent disbelief) was justified. Other

examples offered by Joumaa were either harmless typographical

errors or due to internal contradictions within the evidence

offered by Joumaa. (1) On the whole, we cannot say that the record

compels the conclusion that the IJ's interpretation of Joumaa's

testimony was faulty.

A review of the record shows that the adverse credibility

determination was grounded in specific findings and substantial

evidence. The IJ specifically explained that he did not believe

the black car incident because it was unlikely Joumaa could have

survived such an attack as the IJ understood it. The IJ did not

believe that Syrian forces came to Joumaa's parents' house twenty

times within two weeks and told Joumaa's mother that they wanted

her son "alive or dead" because such actions would decrease the

chances that they catch Joumaa or kill him. The alleged actions

"def[ied] logic."

Upon the second ground, Joumaa contends that the IJ erred

by requiring corroborating evidence for his testimony. While it is

true that "[t]he testimony of the applicant, if credible, may be

sufficient to sustain the burden of proof without corroboration,"

8 C.F.R. § 1208.13(a) (emphasis added), the testimony must first be

credible. A conspicuous lack of corroborating evidence that should

be obtainable by the petitioner without great difficulty is a

cogent reason for doubting the credibility of the testimony. See

Albathiani, 318 F.3d at 373. Here, Joumaa testified that he was in

contact with his family on a weekly basis and presented a letter

from Raji Abdo in the Lebanese Forces written on his behalf. Yet,

there was no evidence from his family to corroborate either the car

chase incident or the Mayfouq prayer incident. And Raji Abdo was,

by Joumaa's testimony, present at the Mayfouq incident, but his

statement says nothing about the incident. He provided no

newspaper account of the Mayfouq incident, and he never reported

either of the incidents to any government official. As the IJ puts

it, "Certainly anything is possible. However, there are some

things that ... defy logic and require some sort of verification by

objective documentation." Given such a conspicuous lack of

corroborating evidence that appears to have been available to

Joumaa, the IJ had good reason to doubt the credibility of the

petitioner.

B.

Even assuming that Joumaa's testimony was credible,

sufficient evidence supported the IJ's decision that he did not

meet the eligibility requirements for asylum, withholding of

removal, or protection under the CAT.

The petitioner has the burden of proof for establishing

eligibility for asylum. 8 C.F.R. § 1208.13(a). In order to obtain

asylum, applicants must show either past persecution or a well-founded fear of future persecution based on one of the five

statutory grounds: "race, religion, nationality, membership in a

particular social group, or political opinion." Id. §

1208.13(b)(1).

To prove past persecution, the petitioner must provide

persuasive evidence that he was persecuted on any of the five

statutory grounds. Velasquez v. Ashcroft, 316 F.3d 31, 34-35 (1st

Cir. 2002). To demonstrate a well-founded fear of future

persecution, "a petitioner must satisfy both an objective and a

subjective test." Khalil v. Ashcroft, 337 F.3d 50, 55 (1st Cir.

2003). The individual's fear "must be both genuine and objectively

reasonable." Aguilar-Solis, 168 F.3d at 572. The petitioner may

either "offer specific proof, or [he] can claim the benefit of a

regulatory presumption based on proof of past persecution."

Khalil, 337 F.3d at 55.

The test for withholding of removal is even more

stringent than the test for asylum. Albathiani, 318 F.3d at 372.

If the petitioner cannot meet the standard for asylum, he a

fortiori cannot meet the standard for withholding of removal.

Alvarez-Flores v. INS, 909 F.2d 1, 4 (1st Cir. 1990).

With regard to Joumaa's claim for protection under the

CAT, such protection is granted where there are "substantial

grounds for believing [applicants] would be subject to torture" if

returned to their home countries. Albathiani, 318 F.3d at 372 n.3.

When the applicant provides no evidence that "it is more likely

than not that he ... would be tortured if removed to the proposed

country," he cannot be granted protection under the CAT. 8 C.F.R. § 1208.16(c)(2).

Substantial evidence in the record supports the IJ's

finding that, even if credible, Joumaa's version of events failed

to provide persuasive evidence of past persecution or establish a

well-founded fear of future persecution. As the IJ noted, Joumaa's

testimony involved numerous "unsubstantiated and conjectural"

statements that fail to demonstrate an objectively reasonable fear

of future persecution. In addition, Joumaa conceded that his

religion is the same as that of the then-president of Lebanon and

that his family continues to live in Lebanon and has not suffered

any harm. The petitioner has thus failed to provide persuasive

evidence that he was or will be persecuted as a result of his

membership in the Lebanese Forces, his religion, or his political

opinion.

In addition, because Joumaa failed to meet the more

lenient standard for asylum, he also failed to meet the standard

for withholding of removal. Since he has given no evidence that he

has suffered torture at the hands of the government or would be

likely to suffer such torture if returned to Lebanon, he cannot be

granted protection under the CAT. Accordingly, we deny the

petition for review and affirm the decision of the BIA.

IV.

The decision of the BIA is affirmed.

1. Joumaa criticizes the IJ for writing "a group of people from

the Syrian army came to his house and confronted him" in his

decision when the army actually confronted Joumaa's mother. The

fact that the IJ twice correctly noted that the confrontation

occurred with Joumaa's mother elsewhere in the opinion indicates

that this was a simple typographical error rather than a true

misunderstanding.

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