Roscoe George Campbell v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

SEPTEMBER 20, 2007

Nos. 06-12390 THOMAS K. KAHN

06-13724 CLERK

07-10632

Non-Argument Calendar

________________________

BIA Nos. A79-479-795 & A79-479-796

ROSCOE GEORGE CAMPBELL,

HELEN GARNELL CAMPBELL,

DENARIS TENEKO KELLY,

KEDEISHA GEORGETT CAMPBELL,

KAYNEISHA OSHLA CAMPBELL,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petitions for Review of a Decision of the

Board of Immigration Appeals

_________________________

(September 20, 2007)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Roscoe Campbell,1 a native and citizen of the Bahamas, through counsel, has

filed for review of the Board of Immigration Appeals’ (“BIA’s”) denial of his

application for withholding of removal, 8 U.S.C. § 1158 and 1231(b)(3), and

protection under the Convention Against Torture (“CAT”), 8 C.F.R.

§ 1208.16(c)(2), and his motions for reconsideration and to reopen the BIA’s

denial of the same claims.2 On appeal, Campbell first challenges the IJ’s adverse

credibility finding.3 Second, Campbell argues that the BIA erred in affirming the

IJ’s decision because the IJ’s findings were skewed by prejudgment, personal

speculation, bias, and conjecture which rose to the level of violating his rights to

due process and to present evidence. Third, Campbell argues that the BIA abused

1

Campbell indicated that his spouse and three children were included in his asylum

application. We recently held, however, that the withholding of removal statute does not create

derivative rights for the spouse of a petitioner. See Delgado v. United States Att’y Gen., 487

F.3d 855, 862 (11th Cir. 2007).

2

In July 2007, we granted Campbell’s motion to consolidate all three of his petitions for

review.

3

The parties agree that we lack jurisdiction to review the denial of Campbell’s untimely

asylum application. See Dakane v. United States Att’y Gen., 371 F.3d 771, 773 n.3 (11th Cir.

2004) (the statutory limit for filing a petition for review in an immigration proceeding is

“mandatory and jurisdictional,” and it is not subject to equitable tolling); see also Stone v. I.N.S.,

514 U.S. 386, 395, 405, 115 S. Ct. 1537, 1545, 1549 (1995) (holding that the filing deadline for

review is not suspended or tolled by a motion to reopen). In addition, because Campbell does

not challenge the BIA’s denial of his motion for reconsideration of his asylum application, we

deem any claims in that regard abandoned. See Sepulveda v. United States Att’y Gen., 401 F.3d

1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that

issue is abandoned.”).

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its discretion by failing to reopen his removal proceedings in light of the previously

unavailable evidence. Last, Campbell argues that the BIA abused its discretion and

violated his right to due process by failing to address an argument in his motion to

reopen, specifically, that the publication of his asylum claim in the media placed

him at greater risk of harm from the Royal Bahamas Defense Force (“Defense

Force”), and, therefore, his removal proceedings should be reopened.

I.

Where the BIA issues a decision, we review only that decision, except to the

extent that it expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, we

will review the IJ’s decision as well.” Id. Although, here, the BIA did not

expressly adopt the IJ’s opinion, because the BIA referred to the IJ’s reasoning and

found it, at least in part, to be supported by substantial evidence, we review the

BIA and IJ’s decisions.

We review factual determinations, including credibility determinations,

using the substantial evidence test. Forgue v. United States Att’y Gen., 401 F.3d

1282, 1286 (11th Cir. 2005). We will affirm if the decision “is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Id. (quoting Al Najjar, 257 F.3d at 1284). “[W]e review the record

evidence in the light most favorable to the agency’s decision and draw all

3

reasonable inferences in favor of that decision. Id. (quoting Adefemi v. Ashcroft,

386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)). To conclude that the IJ’s or

BIA’s decision should be reversed, we “must find that the record not only supports

that conclusion, but compels it.” Fahim v. United States Att’y Gen., 278 F.3d

1216, 1218 (11th Cir. 2002) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 480

n.1, 112 S. Ct. 812 (1992)). “[T]he mere fact that the record may support a

contrary conclusion is not enough to justify a reversal of the administrative

findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

“In considering a petitioner’s claim for withholding of removal, the IJ must

determine credibility in the same manner as in asylum cases.” Niftaliev v. United

States Att’y Gen., 487 F.3d 834, 838 (11th Cir. 2007). Thus, the IJ must make an

explicit credibility determination. See Yang v. United States Att’y Gen., 418 F.3d

1198, 1201 (11th Cir. 2005). In this case, the IJ explicitly found Campbell’s

testimony not credible.

“Once an adverse credibility finding is made, the burden is on the applicant

alien to show that the IJ’s [or BIA’s] credibility decision was not supported by

‘specific, cogent reasons’ or was not based on substantial evidence.” Forgue, 401

F.3d at 1287. “The trier of fact must determine credibility, and [we] may not

substitute its judgment for that of the [IJ or ] BIA with respect to credibility

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findings.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 818 (11th Cir.

2004).

“Indications of reliable testimony include consistency on direct examination,

consistency with the written application, and the absence of embellishments.” Ruiz

v. United States Atty. Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). In Ruiz, we

concluded that the IJ offered “specific, cogent reasons” for his adverse credibility

finding when it had not found plausible the applicant’s testimony. Id. In addition,

inconsistencies between a petitioner’s testimony and other record evidence

supports an adverse credibility finding. Dailide v. United States Att’y Gen., 387

F.3d 1335, 1343 (11th Cir. 2004). While “an adverse credibility determination

alone may be sufficient to support the denial of an asylum application,” such

finding “does not alleviate the IJ’s duty to consider other evidence produced by an

asylum applicant.” Forgue, 401 F.3d at 1287.

The burden of proof for an applicant seeking withholding of removal is

higher than the burden imposed on an asylum applicant. Al Najjar, 257 F.3d at

1292-93. With respect to the aliens who timely seek the later, they may apply for

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General and

the Secretary of Homeland Security have discretion to grant asylum if the alien

meets the INA’s definition of a “refugee.” See INA § 208(b)(1), 8 U. S. C. §

1158(b)(1).

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A “refugee” is:

any person who is outside any country of such person’s nationality or,

in the case of a person having no nationality, is outside any country in

which such person last habitually resided, and who is unable or

unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that 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.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the

burden of proving statutory “refugee” status. See Al Najjar, 257 F.3d at 1284.

An alien is entitled to asylum if he can establish, with specific and credible

evidence: (1) past persecution on account of his membership in a particular social

group or other statutorily listed factor, or (2) a “well-founded fear” that his

membership in a particular social group or other statutorily listed factor will cause

future persecution. 8 C.F.R. § 208.13(a)-(b); Al Najjar, 257 F.3d at 1287. If a

petitioner demonstrates past persecution, he is presumed to have a well-founded

fear of future persecution unless the government can rebut this presumption by

showing a fundamental change in circumstances in the country or the ability to

avoid future persecution by relocating within the country. 8 C.F.R § 208.13(b)(1).

If he cannot show past persecution, then the petitioner must demonstrate a well-

founded fear of future persecution that is both subjectively genuine and objectively

reasonable. See Al Najjar, 257 F.3d at 1289. The subjective component can be

6

proved “by the applicant’s credible testimony that he or she genuinely fears

persecution,” while the objective component “can be fulfilled either by establishing

past persecution or that he or she has a good reason to fear future persecution.” Id.

(quotation omitted).

Although the INA does not expressly define “persecution” for purposes of

qualifying as a “refugee,” see INA § 101(a)(42), 8 U.S.C. § 1101(a)(42), we have

stated that “persecution is an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation.” Sepulveda v. United States Att’y

Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (internal quotation marks and citation

omitted); see also Silva v. United States Att’y Gen., 448 F.3d 1229, 1237 (11th Cir.

2006) (holding that the receipt of a “condolence note” alone did not amount to

persecution). In determining whether an alien has suffered past persecution, the IJ

must consider the cumulative effects of the incidents. See Ruiz, 479 F.3d at 766.

The petitioner’s well-founded fear of persecution must be on account of, or

because of, one of the statutorily listed factors. See I.N.S. v. Elias-Zacarias, 502

U.S. 478, 483, 112 S. Ct. 812, 816 (1992). To establish the necessary causal

connection, the alien must present “specific, detailed facts showing a good reason

to fear that he or she will be singled out for persecution on account of” a statutorily

listed factor. Al Najjar, 257 F.3d at 1287 (quotation omitted). Furthermore, we

have approved a “country-wide requirement” in which a refugee must first pursue

7

an “internal resettlement alternative” in their own country, or establish that this is

not possible, before seeking asylum here. Mazariegos v. United States Att’y Gen.,

241 F.3d 1320, 1326-27 (11th Cir. 2001).

In contrast to asylum, an alien will only be entitled to withholding of

removal under the INA if he can show that his life or freedom would be threatened

on account of race, religion, nationality, membership in a particular social group,

or political opinion. Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1287

(11th Cir. 2003); see also INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The

alien bears the burden of demonstrating that it is “more likely than not” that he will

be persecuted or tortured upon his return to the country in question. Fahim, 278

F.3d at 1218.

If the alien establishes past persecution based on a protected ground, there is

a rebuttable presumption that his life or freedom would be threatened upon return

to his country. See Mendoza, 327 F.3d at 1287; see also 8 C.F.R.

§ 208.16(b)(1)(i). An alien who has not shown past persecution, however, may

still be entitled to withholding of removal if he can demonstrate a future threat to

his life or freedom on a protected ground. See 8 C.F.R. § 208.16(b)(2). An alien

cannot demonstrate that his life or freedom would be threatened if the IJ finds that

the alien could avoid a future threat to his life or freedom by relocating to another

8

part of the proposed country of removal and, under all the circumstances, it would

be reasonable to expect the applicant to do so. Id. § 208.16(b)(2).

The denial of withholding of removal cannot be based solely on an adverse

credibility finding, however, if the applicant offered “other evidence of

persecution.” Forgue, 401 F.3d at 1287-88 (noting that, where an applicant

produces other evidence of persecution, the IJ must consider that evidence, and it is

not sufficient for the IJ to rely solely on the adverse credibility determination).

Nonetheless, the IJ or BIA is not required to discuss every piece of evidence

submitted by the petitioner. See Tan v. United States Att’y Gen., 446 F.3d 1369,

1376 (11th Cir. 2006).

To obtain relief under the CAT, the burden is on the applicant to establish

that it is “more likely than not” he will be tortured in the country of removal. 8

C.F.R. § 208.16(c)(2); Sanchez v. United States Att’y Gen., 392 F.3d 434, 438

(11th Cir. 2004). Torture is defined as:

any act by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person for such purposes as obtaining

from him or her or a third person information or a confession,

punishing him or her for an act he or she or a third person has

committed or is suspected of having committed, or intimidating or

coercing him or her or a third person, or for any reason based on

discrimination of any kind, when such pain or suffering is inflicted by

or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.

9

Id. § 208.18(a)(1). Because the burden regarding withholding of removal and CAT

relief is higher than the asylum standard, a petitioner who fails to establish

eligibility for asylum is usually unable to carry the burden regarding withholding

of removal and CAT relief. See Forgue, 401 F.3d at 1288 n.4; Al Najjar, 257 F.3d

at 1292-93.

In this case, contrary to Campbell’s assertion, the record demonstrates that

the BIA, like the IJ, clearly made specific findings of fact regarding the adverse

credibility determination. The BIA found that the IJ provided “specific, cogent

reasons for finding [Campbell] was not credible.” In reaching its decision, the BIA

relied on the material inconsistencies between Campbell’s testimony and the

testimony of Drug Enforcement Administration Agent Wright. Accordingly, we

conclude that substantial evidence supports the BIA’s adverse credibility

determination.

Despite Campbell’s claim that a February 2000 memorandum by Agent

Mitchell corroborated his assertion that he continued to provide drug trafficking

intelligence to the agents following their initial meeting, the BIA found that

Campbell’s counsel “repeatedly has selectively taken Agent Mitchell’s letter out of

context.” The BIA’s finding is supported by Agent Mitchell’s memorandum,

wherein he wrote that, following their initial meeting, Campbell called him on

10

several occasions to inquire about the status of his paperwork and when he would

get paid.

Additionally, the record shows that the IJ’s adverse credibility finding

regarding Campbell’s poor recollection of the details of his case was also

supported by substantial evidence. Among other things, the record shows that,

Campbell had difficulty remembering the details of the events relating to his claim

for relief, and he gave inconsistent statements about the facts. Campbell could not

remember the number of times he called the DEA agents to offer intelligence, and

when he did give an answer, it conflicted with his prior testimony. Campbell gave

conflicting testimony about the names and number of Defense Force officers who

were arrested as a result of the information he supplied to the DEA. At his

removal hearing, Campbell testified that he did not want money in exchange for

the intelligence he offered to the DEA, but he later testified that he retained an

attorney to collect money for the information he allegedly provided the DEA. In

addition, the IJ found implausible Campbell’s testimony that he waited six years

after he left the Defense Force to provide intelligence to the DEA because “he

could not take it” any longer.

The IJ also considered the other evidence in making its adverse credibility

determination. See Tan, 446 F.3d at 1376. The supplemental materials did not

contain any evidence that would compel a reasonable fact finder to find that the

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IJ’s and BIA’s denial of Campbell’s withholding of removal was not supported by

substantial evidence. See Chen v. United States Att’y Gen., 463 F.3d 1228, 1231

(11th Cir. 2006) (quotation omitted). Specifically, the evidence discussed above

does not demonstrate that Campbell suffered past persecution or more likely than

not will be persecuted or tortured upon his return to the Bahamas based on his

membership in a particular social or political group. See Fahim, 278 F.3d at 1216.

Likewise, because Campbell could not establish that it is “more likely than not” he

will be tortured in the Bahamas, his CAT claim would also fail. See Sanchez, 392

F.3d at 438. Based on the foregoing reasons, we deny Campbell’s petition for

review of his claims for withholding of removal and CAT relief. See Forgue, 401

F.3d at 1287-88.

II.

We review de novo a due process violation claim in removal proceedings

and administrative appeals. Lonyem v. United States Att’y Gen., 352 F.3d 1338,

1341-1342 (11th Cir. 2003).

Due process is satisfied only by a full and fair hearing. Ibrahim v. I.N.S.,

821 F.2d 1547, 1550 (11th Cir. 1987). “To prevail . . . on a due process challenge

to a [removal] proceeding, an alien must show substantial prejudice.” Id. An alien

can demonstrate substantial prejudice by showing that the outcome would have

been different had the due process violation not occurred. Id. “[A] party to an

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immigration case . . . is entitled to a full and fair hearing-not an idyllic one.”

Aguilar-Solis v. I.N.S., 168 F.3d 565, 569 (1st Cir.1999) (persuasive authority).

We conclude from the record that the IJ did not deny Campbell due process

nor deny him the right to present evidence. While it is true that the IJ interrupted

Campbell’s testimony throughout the hearing, a review of the record indicates that

the purpose of most of the interruptions was to gain more clarification with regard

to his testimony. The IJ’s inappropriate conduct was not limited to Campbell, but

was directed toward the government’s attorney, too, and, therefore, it does not

necessarily show bias against him as much as improper conduct generally.

Furthermore, the vast majority of the IJ’s interruptions and questions were

probative as to the issues raised by Campbell. Moreover, Campbell neither

objected to the IJ’s questions or conduct during the hearing, nor points to any

instances in the record where he was substantially prevented from testifying as to

his story. Additionally, the IJ went as far as to grant Campbell a two-month

continuance so that he could bolster his claim.

While it is true that the IJ appeared impatient and annoyed by some of

Campbell’s responses and made some unnecessary and unprofessional comments

at the hearing and in his oral decision, Campbell has not shown that the outcome

would have been different in the absence of those comments and interruptions. Cf.

Ibrahim, 821 F.2d at 1550 (failing to show prejudice by the ruling made in the

13

alien’s absence). In fact, the BIA found that the record supported the IJ’s adverse

credibility ruling. Furthermore, even in the absence of an adverse credibility

ruling, Campbell did not show that he was subjected to past persecution, a

well-founded fear of future persecution, or that he was entitled to CAT relief.

Moreover, the BIA admonished the IJ for his sarcasm, which it found was

inappropriate. Therefore, Campbell has not demonstrated substantial prejudice,

and we deny his petition in this respect.

III.

We normally review the BIA’s denial of a motion to reopen for an abuse of

discretion. Al Najjar, 257 F.3d at 1302. We will uphold a determination of the

BIA if it is “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” Elias-Zacarias, 502 U.S. at 481, 112 S. Ct. at 815

(1992) (quoting 8 U.S.C. § 1105a(a)(4)). “Judicial review of denials of

discretionary relief incident to deportation proceedings, including motions to

reopen, is limited to determining ‘whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or

capricious.’” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quoting

Jarecha v. I.N.S., 417 F.2d 220, 224 (5th Cir. 1969)). The BIA abuses its

discretion when its decision “provides no rational explanation, inexplicably departs

from established policies, is devoid of any reasoning, or contains only summary or

14

conclusory statements.” Mickeviciute v. I.N.S., 327 F.3d 1159, 1162 (10th Cir.

2003) (quotation omitted) (persuasive authority).

“[T]here are at least three independent grounds upon which the Board may

deny a motion to reopen: 1) failure to establish a prima facie case; 2) failure to

introduce evidence that was material and previously unavailable; and 3) a

determination that despite the alien’s statutory eligibility for relief, he or she is not

entitled to a favorable exercise of discretion.” Al Najjar, 257 F.3d at 1302. Under

8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen proceedings shall not be granted

unless it appears to the Board that evidence sought to be offered is material and

was not available and could not have been discovered or presented at the former

hearing.” In discussing the judicial review of a motion to reopen, we noted that:

[t]he provision is framed negatively, by directing the Board not to

reopen unless certain showings are made. It does not affirmatively

require the Board to reopen the proceedings under any particular

condition. Thus, the regulations may be construed to provide the

Board with discretion in determining under what circumstances

proceedings should be reopened.

Al Najjar, 257 F.3d at 1301 (alterations, citations, and internal quotations omitted).

In Brunner v. United States, 70 Fed. Cl. 623, 625 (Fed. Cl. 2006), a civil

case before a trial court on a motion for summary judgment, the plaintiff sued the

DEA for breach of an oral contract to compensate him for assistance he rendered

against drug traffickers. In that case, it was undisputed that the plaintiff entered

15

into an official cooperating agreement with the DEA to act as a confidential source.

Id. Ultimately, the court held that no contract existed between the DEA and the

plaintiff concerning a promise to pay awards for information which led to either

indictments or seizure and forfeiture of property due to lack of contracting

authority and lack of ratification, but that the DEA agents did possess the implied

authority to bind the DEA in a contract paying a salary and expenses to plaintiff.

Id. at 649.

In this case, Campbell argues that the BIA abused its discretion by failing to

reopen his removal proceedings in light of the previously unavailable evidence,

namely a post-removal hearing psychological evaluation indicating that he suffers

from Post Traumatic Stress Disorder and major depressive disorder. We conclude

that the BIA’s finding that this evidence was neither new nor unavailable was

limited to the exercise of administrative discretion and was not arbitrary or

capricious, and, therefore, the BIA did not abuse its discretion. See Garcia-Mir,

766 F.2d at 1490. Moreover, the BIA’s findings in this regard were supported by

rational explanation and reasoning. First, the BIA found, and the evaluation report

confirms, that Campbell’s psychological evaluation was based on the same

symptamotology he experienced after arriving in the United States in 1999.

Second, the BIA observed that Campbell did not offer any explanation as to why

16

he or his attorney failed to previously seek such an evaluation if either believed it

to be relevant to his application for relief.

In addition, contrary to Campbell’s assertion that the BIA “ignored his

explanation that a psychological evaluation only became relevant and necessary

after the [IJ’s] continual interruption and mocking of [him]” the record shows

otherwise. Specifically, the record shows that Campbell was aware of his failure to

provide a cogent recitation of the facts long before he moved to reopen based on

the psychological evaluation, and that he repeatedly related that failure to the IJ’s

conduct during the removal proceedings. For instance, Campbell made such

arguments in his briefs to the BIA on direct appeal and in support of his motion for

reconsideration.

Furthermore, Campbell’s reliance on Brunner is misplaced. The case does

not establish that Campbell was prima facie eligible for any of the relief he sought.

Accordingly, we deny Campbell’s petition in this respect.

IV.

In his motion to reopen, Campbell argued that he qualified as a refugee sur

place because he met the statutory requirements for asylum and withholding of

removal when his persecutor became aware of, and was angered by, international

media coverage surrounding his claims. In support of this claim, Campbell

submitted an article published in the Miami New Times. The BIA found the article

17

to be duplicative of previously submitted evidence offered in support of his

application. The BIA did not abuse its discretion in so finding. Moreover, on

appeal, Campbell concedes that the article chronicled the facts of his experiences in

the Bahamas and throughout the asylum application process, and, therefore, the

article does not qualify as material evidence that was not available and could not

have been discovered or presented at the former hearing.

Furthermore, Campbell’s reliance on Lusingo v. Gonzales, 420 F.3d 193 (3d

Cir. 2005), and Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), for the

proposition that the BIA abused its discretion in denying his motion to reopen his

removal based on the increased threat of danger that arose from media coverage of

his asylum claim is without merit. These cases are inapposite to the facts and

circumstances here. Lusingo involved a petition for review of the BIA’s denial of

a direct appeal from the IJ’s decision, and evidence showed that the petitioner’s

case was widely publicized in his home country where it was likely that the

government would persecute him if he were returned. Lusingo, 420 F.3d at 194,

201-02. Similarly, Mogharrabi involved a petition for review of the BIA’s denial

of a direct appeal of the IJ’s decision, and evidence showed that the petitioner was

involved in an altercation at an embassy with an employee of his home country’s

government, that he participated in government demonstrations, and that opponents

of the Ayatollah Khomeini are often persecuted for their opposition. Mogharrabi,

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19 I. & N. Dec. 439. Thus, unlike in Campbell’s case where there was no evidence

that the Bahamian government was aware of the media coverage he received in the

United States, and that if he returned he would be persecuted as a result thereof, in

the cases cited to us by Campbell, there was undisputed ample evidence that the

petitioner’s home country government was aware of the media coverage in the

United States and that a reasonable person in his position would fear persecution if

returned. Accordingly, we conclude that the BIA did not abuse its discretion nor

did it violate his right to due process in this respect.

V.

For the above-stated reasons, we deny Campbell’s petition for review.

PETITION DENIED.

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