explaining that, when the IJ enumerates an applicant’s inconsistencies and is supported by the record, “we will not substitute our judgment for that of the IJ with respect to its credibility findings”
How later courts described this case
- explaining that, when the IJ enumerates an applicant’s inconsistencies and is supported by the record, “we will not substitute our judgment for that of the IJ with respect to its credibility findings”
- explaining that “this court may not substitute its judgment for that of the BIA with respect to credibility findings” (citing Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977))
- noting that credibility determinations are reviewed under the substantial evidence test and stating that “[t]he trier of fact must determine credibility, and [we] may not substitute [our] judgment for that of the [IJ] with respect to credibility findings”
- explaining that because applicant “cannot meet the ‘well-founded fear’ standard for asylum, it is a fortiori that he cannot meet the withholding of removal standard”
Written by the judges who cited it.
The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 19, 2004
No. 03-14825 THOMAS K. KAHN
CLERK
Agency No. A77-002-369
ISMAIL ABDILAHI D-MUHUMED,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
Petition for Review of an Order of the
Board of Immigration Appeals
(October 19, 2004)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
DUBINA, Circuit Judge:
Ismail Abdilahi D-Muhumed (“D-Muhumed”), a native and citizen of
Somalia, petitions this court for review of the final order of removal of the Board
of Immigration Appeals (“BIA”). The BIA’s order affirmed the Immigration
Judge’s (“IJ”) decision which denied withholding of removal under the
Immigration and Nationality Act (“INA”) and the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment of
Punishment (“CAT”). For the reasons that follow, we deny the petition for review.
I. BACKGROUND
In December 1998, D-Muhumed attempted to enter the United States with a
fraudulent Ethiopian passport. The Immigration and Naturalization Service
(“INS”) issued D-Muhumed a Notice to Appear, charging him with removability
under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), for being an alien who,
by fraud or willfully misrepresenting a material fact, sought to procure a visa,
other documentation, or admission into the United States; and under INA §
212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), for being an immigrant who, at
the time of application for admission, did not possess a valid, unexpired entry
document.
2
During his interview with an asylum officer, D-Muhumed stated that his
brother had been killed by an artillery shell in 1990, after which his family fled
Mogadishu to the town of Baydhabo, where they remained until 1994. He also
told the asylum officer that his father, a member of the Midgan clan, was killed by
a member of the Darod clan and that, after his father’s death, the family returned to
Mogadishu, where a neighbor protected them from the ruling Hawiye clan. He
claimed that from 1996 to 1998, the family remained in hiding at the home of a
friend who was Hawiye. After the family’s return to Mogadishu, the Hawiye clan
killed another brother. D-Muhumed stated that, in 1998, following an attack by
the Hawiye clan, the people who were hiding D-Muhumed’s family told the family
to leave. At that time, D-Muhumed fled the country.
D-Muhumed filed an application for asylum and withholding of removal,
alleging that both his father and a brother had been killed by rival clan members,
and that he had been wounded in the shoulder during the attack on his father. D-
Muhumed averred that after his father’s murder, his family moved from place to
place in Somalia, attempting unsuccessfully to escape the violence. Following the
family’s return to Mogadishu in 1996, the Hawiye clan attacked them and killed
his brother. D-Muhumed stated that his family then went into hiding at a friend’s
Mogadishu house until 1998, when the Hawiye attacked the house, and his friend
3
told them to leave. In his application, D-Muhumed claimed that he was persecuted
based on his membership in the Midgan clan and that, if he returned to Somalia, he
would be killed by members of the major clans because the same thing had
happened to other members of his family, and there was no peace in his country.
At his subsequent hearing before the IJ, D-Muhumed conceded removability
and requested asylum and withholding of removal. D-Muhumed reiterated the
concerns he enumerated in his asylum application and provided more details about
his family’s problems. Specifically, D-Muhumed testified that after the Darod
clan killed his father, and his family returned to Mogadishu in 1996, people were
always trying to attack his family. One night, a man knocked on their door,
climbed over the wall of their house, and shot and killed one of his brothers while
the rest of the family fled. Following that incident, his family fled to another
neighborhood where a friend of his father’s, who was Hawiye, agreed to let them
stay at his house. D-Muhumed stated that the family stayed with this friend for
two years, during which time he never left the house. He also testified that on
every night of this two-year period, Hawiye clan members would come to the
house and demand to see the Midgan who was staying there. D-Muhumed stated
that beginning the second week that they were there, the Hawiye attacked the
house every night for two years by firing bullets at the house. The man who
4
owned the house would return fire. Eventually, the Hawiye killed the man’s son
during one of the attacks. D-Muhumed stayed only one more month at the house.
On cross-examination, D-Muhumed claimed that the town of Baydhabo was
controlled by the Darod clan at the time his family arrived there, but over the
course of their stay, power changed hands several times between the Darod and
Hawiye. The Hawiye were in power when the Darod clan killed his father. When
the government pointed out that D-Muhumed’s asylum application did not
mention that the Hawiye had attacked the house where he was staying every night
between 1996 and 1998, D-Muhumed asserted that this inconsistency was due to
the language barrier. The IJ asked D-Muhumed’s counsel, who had prepared the
asylum application, if she believed that D-Muhumed understood all of the
questions that she asked, and she responded affirmatively.1
1
The IJ also considered the U.S. State Department’s Somalia Country Report on Human
Rights Practices for 1998 (“1998 Country Report”) and the U.S. State Department’s “Somalia:
Profile of Asylum Claims and Country Conditions” for December 1996 (“1996 Profile”). The 1996
Profile described how the four dominant sub-clans were the Issak in the north, the Darod in the
northeast along the Kenyan border, the Hawiye in the central region stretching from Mogadishu, and
the Rahanweyn, which traditionally was less powerful. It stated that each of these clans was further
divided into an intricate web of sub-clans and sub-sub-clans, which feuded and formed alliances in
a constantly shifting pattern, and there was a fluctuation of power between traditional clan leaders
and clan-based militias and factions. The 1996 Profile did not specifically mention the Midgan clan.
Notably, it stated that there was no automatic correlation between clan affiliation and danger of
persecution, and whether a fear based on clan membership was well-founded depended on the nature
and durability of the alleged threat and the alien’s physical location within the country. The 1998
Country Report stated that Somalia had been without a central government since the dictator
Mohamed Siad Barre fled the country in 1991. The 1998 Country Report stated that, after the
withdrawal of United Nations peacekeepers in 1995, clan and factional militias continued to rule
5
The IJ found significant discrepancies between D-Muhumed’s asylum
application and his testimony, particularly with respect to the events that occurred
after mid-1996. The IJ found that, in his application, D-Muhumed stated that the
Hawiye attacked the Mogadishan house where he was staying only once in 1998,
but he testified at the hearing that the Hawiye attacked the house more than 1,000
times between mid-1996 and the end of 1998. The IJ found incredible D-
Muhumed’s claims that the Hawiye attacked the house so many times and that he
never left the house for more than two years. The IJ also determined that it was
incredible that the Hawiye clan members never succeeded in harming D-Muhumed
or any of his family members in so many attempts, and that D-Muhumed’s story
did not seem believable because nothing happened to him when he finally left the
house to secure his departure from Somalia in 1998.
The IJ concluded that the general turmoil in Somalia during the relevant
period when D-Muhumed’s story took place did not, by itself, give rise to a valid
asylum claim, and that most of the tribal conflict amounted to no more than
discrimination. The IJ found that, because D-Muhumed could not meet his burden
to show eligibility for asylum, he could not meet the higher burdens required to
various regions of the country with varying degrees of effectiveness. However, it stated that serious
interclan fighting occurred only in the central Somali regions of Bay and Bakool, the southern
regions of Gedo and Lower Juba, and around Kismayo, but not in Mogadishu.
6
obtain withholding of removal or relief under the CAT. The IJ ordered D-
Muhumed removed to Somalia.
D-Muhumed appealed the IJ’s decision to the BIA. The BIA agreed with
the IJ’s observations regarding the discrepancies in D-Muhumed’s description of
his experiences in Somalia between 1996 and 1998. Hence, the BIA agreed with
the IJ’s adverse credibility finding and found that D-Muhumed was ineligible for
the relief he sought. D-Muhumed then filed this petition for review.
II. ISSUE
Whether there is substantial evidence in the record to support the IJ’s
finding that D-Muhumed failed to present credible evidence in support of his
asylum application.
III. STANDARD OF REVIEW
To the extent that the BIA’s decision was based on a legal determination,
this court’s review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th
Cir. 2001). The BIA’s factual determinations are reviewed under the substantial
evidence test, and this court “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
7
whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (internal
quotations and citation omitted). When the BIA does not render its own opinion
but rather adopts the IJ’s opinion, then this court, in essence, reviews the IJ’s
decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002) (citation omitted).
Credibility determinations likewise are reviewed under the substantial evidence
test. See id. at 272. The trier of fact must determine credibility, and this court
may not substitute its judgment for that of the BIA with respect to credibility
findings. Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977)2
(citations omitted).
IV. DISCUSSION
D-Muhumed argues that the IJ erred by finding that he was not eligible for
asylum based on a well-founded fear of persecution. D-Muhumed contends that
he established a well-founded fear of future prosecution based upon widespread
persecution of his clan in Somalia and the past persecution of members of his
family. The government responds that the IJ did not err in its credibility
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
8
determination because a reasonable adjudicator would not be compelled to
conclude that D-Muhumed presented a credible asylum claim. We agree.
An alien who arrives in or is present in the United States may apply for
asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant
asylum if the alien meets the INA’s definition of a “refugee.” 8 U.S.C. §
1158(b)(1). 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 . . . .
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.
To establish asylum eligibility, “the alien must establish a ‘well-founded
fear’ that his or her political opinion (or other statutorily listed factor) will cause
harm or suffering that rises to the level of ‘persecution.’” Id. at 1287 (citing 8
U.S.C. § 1101(a)(42)(A)). “Demonstrating such a connection requires the alien to
present specific, detailed facts showing a good reason to fear that he or she will be
singled out for persecution on account of such an opinion.” Id. (internal
9
quotations and citation omitted) (emphasis in original). If the alien establishes
past persecution, the burden shifts to the government to prove by a preponderance
of the evidence that (1) “[t]here has been a fundamental change in circumstances
such that the [alien] no longer has a well-founded fear of persecution [or (2) the
alien] could avoid future persecution by relocating to another part of the [alien’s]
country. . . .” 8 C.F.R. § 208.13(b)(1)(i), (ii). Uncorroborated but credible
testimony from the applicant may be sufficient alone to sustain the burden of proof
for asylum or withholding of removal. 8 C.F.R. § § 208.13(a), 208.16(b).
Although an applicant’s uncorroborated but credible testimony may be
sufficient alone to sustain the burden of proof for asylum, see id., in this case, the
IJ noted numerous inconsistencies between D-Muhumed’s asylum application, his
testimony at the hearing, and the documentary evidence. The IJ provided “cogent
reasons for his credibility determination” and those reasons are “supported by
substantial evidence in the record much like any factual determination.”
Beganovic v. Ashcroft, No. 03-60185, 2004 WL 1759252, at *4 (5th Cir. Aug. 5,
2004) (citations omitted); see also Lopez De Jesus v. INS, 312 F.3d 155, 161 (5th
Cir. 2002) (stating that “a credibility determination may not be overturned unless
the record compels it”). Specifically, the IJ did not believe that D-Muhumed could
have lived, for over two years, in a house that the Hawiye clan attacked daily
10
without suffering any harm. The IJ also found that, if the situation was as D-
Muhumed claimed, it was not plausible that D-Muhumed could have safely left the
house without incident when he finally arranged to leave the country.
Furthermore, the IJ reasoned that, if the Hawiye clan did attack the house daily for
over two years, D-Muhumed would have included that fact in his asylum
application because it was a significant part of his claim.
Given the IJ’s enumeration of these inconsistencies, which are supported by
the record, we will not substitute our judgment for that of the IJ with respect to its
credibility findings. See Vasquez-Mondragon, 560 F.2d at 1226. Additionally,
although the IJ’s extremely detailed adverse credibility determination alone may
be sufficient to support the IJ’s denial of D-Muhumed’s petition, see Singh-Kaur
v. INS, 183 F.3d 1147, 1149-53 (9th Cir. 1999) (affirming BIA’s denial of asylum
application based on the IJ’s adverse credibility determination alone), our review
of the record reveals substantial evidence supporting the IJ’s finding that D-
Muhumed failed to establish a well-founded fear of persecution.
As for D-Muhumed’s claim of withholding of removal, we find that he
cannot show that his life or freedom would “more likely than not” be threatened or
persecuted upon return to his country because of his membership in the Midgan
clan. See Mendoza v. United States Attorney Gen., 327 F.3d 1283, 1287 (11th Cir.
11
2003); 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(b). This standard is more
stringent than the “well-founded fear” standard for asylum. See Al Najjar, 257
F.3d at 1293. Accordingly, because D-Muhumed cannot meet the “well-founded
fear” standard for asylum, it is a fortiori that he cannot meet the withholding of
removal standard. See id. at 1292-93.
Lastly, D-Muhumed cannot prevail on his claim for CAT relief because he
cannot show that he “more likely than not” will be tortured upon his return to
Somalia. 8 C.F.R. § 208.16(c)(2).
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.
8 C.F.R. § 208.18(a)(1). D-Muhumed fails to demonstrate that the harm he
suffered was inflicted at the instigation of, or with the consent or acquiescence of,
a public official. The objective evidence indicates that Somalia currently has no
central government, and the clans who control various sections of the country do
12
so through continued warfare and not through official power. Hence, D-
Muhumed’s claim for CAT relief fails.
For the foregoing reasons, we deny D-Muhumed’s petition for review.
PETITION DENIED.
13