Filed: Jul. 21, 2015
Latest Update: Mar. 02, 2020
Summary: We would not endorse the BIA's, statement that [Mboowa] also did not provide reasonably available, corroborative evidence to support his claims to the extent that, statement could be read to provide an independent ground for, denying the asylum claim.F.3d at 72.-14-, discrepancies at all.
United States Court of Appeals
For the First Circuit
No. 13-1367
HENRY MBOOWA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Stuart F. Delery, Assistant Attorney General, and Erica B.
Miles and James A. Hunolt, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, on
brief for respondent.
July 21, 2015
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
HOWARD, Chief Judge. Petitioner Henry Mboowa, a native
and citizen of Uganda, asks us to review a Board of Immigration
Appeals ("BIA") order denying his claims for asylum, withholding of
removal, and protection under the United Nations Convention Against
Torture ("CAT"). The BIA upheld an Immigration Judge's ("IJ")
finding that Mboowa's testimony was not credible and, thus, that he
was unable to establish eligibility for relief. After careful
review, however, we conclude that the record does not support two
of the purported discrepancies that the agency considered critical
in discrediting Mboowa's account. In light of that finding, we
grant Mboowa's petition, vacate the BIA's order, and remand for
additional proceedings.1
I.
Mboowa was born in Kampala, Uganda in 1976. He entered
the United States through Newark, New Jersey on June 5, 2002, to
work as a summer camp counselor as part of an exchange program.
Although his J-1 visa authorized only a temporary stay until
September 15, 2002, he has remained in the United States without
authorization ever since.
On February 27, 2003, Mboowa applied pro se for asylum
but an asylum officer denied his application. No further action
was taken until February 13, 2008, when the Department of Homeland
1
Neither the IJ nor the BIA addressed the substantive merits
of Mboowa's claims. Although those claims were briefed before this
court, we decline to address them in the first instance.
-2-
Security served Mboowa with a Notice to Appear in immigration
removal proceedings. Mboowa appeared with legal counsel at an
initial hearing on July 3, 2008, and conceded that the Notice to
Appear's factual allegations were accurate. Nevertheless, Mboowa
indicated that he would seek asylum, withholding of removal, and
protection under CAT, and he proffered his original, 2003 asylum
application as support for his claims.
Beyond his 2003 asylum application, Mboowa has recounted
the events underlying his claims on several occasions. At the
initial hearing on July 3, 2008, in addition to submitting his
original application, he provided several documents purporting to
corroborate his recollection of events and describing the political
conditions in Uganda. Mboowa also filed additional corroborating
documents and an affidavit on June 30, 2009. Mboowa then testified
before the IJ on December 14, 2010, and once again filed additional
supporting documentation.
The political situation in Uganda, where incumbent
President Yoweri Museveni has remained in office since 1986,
supplies the backdrop for Mboowa's claims. Mboowa alleges that he
joined a "youth pressure group" called the Youth Unity Peace
Initiative ("YUPI") in 2000. Although initially focused on certain
policy issues, the group become directly involved in electoral
politics as the 2001 Ugandan presidential election approached.
YUPI ultimately supported the opposition candidate, Colonel
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Besigye, whom Museveni would defeat in March 2001. Mboowa alleges
that his membership in YUPI -- and the group's support of Besigye
-- left Mboowa and his family vulnerable to persecution by those
loyal to President Museveni, including the Ugandan military and
intelligence services.
Mboowa's claims rest primarily on four incidents that
took place between 2001 and 2002: a 2001 beating, a 2001 home
invasion, the 2002 death of Mboowa's father, and the 2002 beheading
of Mboowa's cousin. We briefly describe the facts central to those
events according to Mboowa's testimony although, as discussed
later, the agency identified certain purported inconsistencies in
Mboowa's accounts.
On January 26, 2001, Mboowa and a YUPI colleague, Moses
Sekibuule, were accosted and beaten in Kampala. Mboowa alleges
that, while the two men were hanging campaign posters supporting
Colonel Besigye, more than a dozen soldiers dressed in camouflage
suddenly approached in a pick-up truck. They demanded that Mboowa
and Sekibuule cease hanging the posters and ordered the two men to
lie on the ground. The soldiers proceeded to whip, kick, and beat
the two men for twelve to fifteen minutes. As a result of the
beating Mboowa maintains that his injuries -- a broken pelvis, deep
wounds on his shins, cuts to his knees, and several cuts and a deep
gash along the side of his head -- required a three-week hospital
-4-
stay. Sekibuule allegedly lost several teeth and sustained either
a broken hand or a broken arm.
A second politically-motivated incident followed on
February 28, 2001. Mboowa recalls that while he was sleeping
several armed men broke into his residence, blindfolded him,
ransacked his house, vandalized his property, and struck him on the
jaw with the butt of a gun. Before departing, the men allegedly
stole several YUPI files and Mboowa's membership card. Mboowa
testified that he gathered the men were from the military
intelligence agency because they warned him that "this was the
price to pay for not supporting the incumbent president."
The following month, President Museveni defeated Colonel
Besigye in the 2001 presidential election. According to Mboowa,
however, the consequences of supporting Besigye did not end with
Museveni's successful reelection. One such consequence, Mboowa
alleges, was the mysterious death of his father in March 2002. His
father also had been politically active and, at the time of his
death, was the Mobilizing Secretary for a second group, "Reform
Agenda," which also had supported Colonel Besigye. Mboowa asserts
that, after not hearing from his father for several days, his
family suspected that his father was "detained" (although he does
not specify by whom). At some point, a local dispensary contacted
the family and informed them that it was providing care for a man
identifying himself as Mboowa's father. Upon finding his father
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malnourished and in poor condition, Mboowa moved him to a hospital.
By the time they arrived at the hospital, Mboowa's father's tongue
had turned entirely black, and his body was "cold and sweating."
Although the medical staff did not know "exactly what was wrong,"
Mboowa testified that the hospital concluded his father "had signs
of poisoning." His father subsequently died during surgery.
Finally, Mboowa testified that his cousin, also an active
member of YUPI, disappeared in April 2002 along with another
colleague. The family lost contact with the cousin for a number of
days but, upon reading a newspaper account of a man who had been
shot, Mboowa testified that the family "started piecing things
together." The family later learned that Mboowa's cousin and his
colleague had been beheaded, and when Mboowa's aunts "went to
identify the bodies," they could only do so based on a distinctive
"birthmark" on his cousin's body. This act of violence was "the
last straw" for Mboowa, prompting him to leave Uganda until "the
dust settles."
Primarily on the basis of these four incidents Mboowa
testified that he fears he would be detained or killed if forced to
return to Uganda. The IJ determined that "the acts of harm
described are plausible in light of country conditions, and would
rise to the level of past persecution if established." But the IJ
deemed Mboowa not credible and was thus "unable to make a finding
that these events actually occurred as described." After
-6-
cataloging "numerous internal inconsistencies and inconsistencies
between his asylum application, affidavits and testimony and
supporting documentation," the IJ discredited Mboowa's testimony in
its entirety. "[M]ost troubling" to the IJ was that "significant
portions of [Mboowa's] testimony, especially his broken pelvis,
three week hospital stay, and the beheading of his cousin" were
omitted "from his original [2003] application, written only about
a year after the events." Without such evidence, the IJ concluded
Mboowa had "not demonstrated past persecution on account of a
statutorily protected ground." The adverse credibility finding
likewise doomed Mboowa's requests for asylum based on the fear of
future persecution, withholding of removal, and protection under
CAT.
The BIA affirmed, finding that the discrepancies
"identified are present and provide specific cogent reasons" for
the IJ's adverse credibility determination. The BIA primarily
recounted the inconsistencies surrounding Mboowa's description of
the 2001 beating, and faulted Mboowa for failing to mention in his
supplemental statement2 (filed as part of his 2003 initial asylum
application) that he "was beaten with the guns of the soldiers but
2
As explained below, the statement consisted of additional
allegations and was attached to Mboowa's application for asylum
(the I-589 Form) as the application form directs. Although the IJ
and BIA referred to this supplement as Mboowa's "first affidavit,"
Mboowa did not label it as such. We refer to this document as the
"supplemental statement," which more accurately portrays the
document's purpose and content.
-7-
not whipped, that he sustained broken ribs and a broken hip, or
that he was hospitalized for 3 weeks." The BIA concluded that
Mboowa failed to adequately explain these discrepancies as well as
"the other discrepancies that the Immigration Judge identified."
The BIA also remarked that several "material inconsistencies that
we do not mention here . . . provide further support [for] the
[IJ's] adverse credibility determination," and that Mboowa failed
to rehabilitate his credibility with corroborating evidence. This
petition timely followed.
II.
Mboowa challenges the adverse credibility determination
and resulting denial of his asylum, withholding of removal, and CAT
claims. "To qualify for asylum, an applicant must establish that
[he] has a 'well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.'" Jin Lin v. Holder, 561 F.3d 68, 71 (1st Cir.
2009) (quoting 8 U.S.C. § 1101(a)(42)(A)). The testimony of the
applicant, alone, can suffice to meet this burden.3
Id. But where
3
Although we need not consider Mboowa's corroborating
evidence here because, as explained below, we conclude that the
adverse credibility determination, itself, was problematic, we
pause to make one observation. We would not endorse the BIA's
statement that "[Mboowa] also did not provide reasonably available
corroborative evidence to support his claims" to the extent that
statement could be read to provide an independent ground for
denying the asylum claim. To be sure, a complete "lack of
corroboration, easily obtainable were the petitioner's tale true,
[may] support[] the adverse credibility determination." Muñoz-
Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir. 2008). But any
-8-
the agency determines that the testimony is not credible, that
testimony "may be discounted or completely disregarded." Id.
Where, as here, "the BIA has written separately while deferring to
and affirming the decision of an IJ, we review both the BIA's
decision and the relevant portions of the IJ's decision." Lutaaya
v. Mukasey,
535 F.3d 63, 70 (1st Cir. 2008).
We review the BIA's and IJ's credibility determination
"under the deferential substantial evidence standard." Dhima v.
Gonzales, 416 F.3d 92, 95 (1st Cir. 2005). That standard "requires
us to uphold the ruling unless the record would compel a reasonable
adjudicator to reach a contrary determination." Jin
Lin, 561 F.3d
at 72. Our deference to the agency's determination is not
unbounded, however. The "IJ must provide a 'specific, cogent, and
supportable explanation for rejecting an alien's testimony.'"
Abdelmalek v. Mukasey,
540 F.3d 19, 22-23 (1st Cir. 2008) (quoting
Teng v. Mukasey,
516 F.3d 12, 16 (1st Cir. 2008)). Under the
"heart of the matter" rule, the discrepancies relied upon to
support an adverse credibility determination "must pertain to facts
holding that an otherwise credible claim is doomed because the
petitioner failed to provide corroborating evidence directly
conflicts with the applicable regulations. See 8 C.F.R. §
208.13(a) ("The testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration.");
see also, e.g., Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)
("An alien's credible testimony may suffice to sustain his burden
of proof even without corroboration.").
-9-
central to the merits of the alien's claims."4 Zheng v. Gonzales,
464 F.3d 60, 63 (1st Cir. 2006). Discrepancies that relate "merely
to peripheral or trivial matters" are insufficient, alone, to
support an adverse credibility determination.
Id.
Accordingly, we are compelled to uphold the IJ's and
BIA's adverse credibility determination in this case only if:
(1) the discrepancies and omissions underlying
the determination are actually present in the
record; (2) those discrepancies and omissions
provide specific and cogent reasons to
conclude that the petitioner's testimony was
incredible with regard to facts central to the
merits of [his] asylum claim; and (3) the
petitioner has failed to provide a convincing
explanation for the discrepancies and
omissions.
Jin Lin, 561 F.3d at 72.
The BIA's and IJ's opinions here fail on the first prong
of this inquiry. After detailing a litany of purported
inconsistencies, the IJ found "most troubling the omission of
significant portions of [Mboowa's] testimony, especially his broken
pelvis, three week hospital stay, and the beheading of his cousin,
from his original application, written only about a year after the
events." And the BIA subsequently adopted that credibility
determination. The IJ's recounting of the record evidence is only
4
Because Mboowa filed his asylum petition on February 27,
2003, Mboowa and the government agree that the "heart of the
matter" rule applies to the BIA's and IJ's credibility
determination here. That rule has since been abrogated by the REAL
ID Act of 2005. See Seng v. Holder, 584 F.3d 13, 18 n.2 (1st Cir.
2009).
-10-
partially accurate, however. After a careful review, we conclude
that although the IJ classified Mboowa's allegations of a broken
pelvis and the beheading of his cousin as purported omissions, both
claims were consistently present in the record.
What the IJ referred to generally as Mboowa's "initial
application" in fact consists of two documents that were filed
concurrently. The first is Mboowa's I-589 Form for asylum.
Entitled "Application for Asylum and for Withholding of Removal,"
the I-589 Form is a pre-printed government application form that
asks a series of specific questions and provides limited space in
which the alien may write or type an answer. Mboowa's form
contains handwritten answers to the various questions. The I-589
Form also instructs an applicant to "attach additional sheets of
paper as needed to complete [the applicant's] responses." Mboowa
did so here. He supplied a typed statement accompanying his I-589
Form that provides further detail regarding some of his claims. In
our view, the I-589 Form and the supplemental statement are best
viewed as a collective whole.
With that understanding in mind, we proceed to the
inconsistencies the IJ purported to identify. The IJ is correct
that one portion of Mboowa's initial application -- the
supplemental statement -- discusses neither his pelvic injury nor
his hospital stay and makes only passing reference to "los[ing] a
cousin after being trailed by the military." But the attached I-
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589 Form does disclose his hip injury and describes, in some
detail, his cousin's beheading. On page 5 of the I-589 Form, in
response to a question asking whether "you, your family, or close
friends or colleagues [have] ever experienced harm or mistreatment
or threats in the past by anyone," Mboowa hand wrote that he
"sustained cuts on the head and a broken hip" during the 2001
beating. On the following page, in response to a question asking
whether any family members had been "accused, charged, arrested,
detained, interrogated, convicted and sentenced, or imprisoned in
any country other than the United States," Mboowa hand wrote: "On
April 3, 2002, my cousin and his colleagues were detained at an
undisclosed location. They were interrogated and tortured, in
their own country, without notifying any relatives. Their bodies
only surfaced three days later, with two of them beheaded."
In concluding that these allegations were absent from
Mboowa's initial application, the agency appears to have placed
talismanic weight on Mboowa's supplemental statement to the
exclusion of the I-589 Form that statement accompanied. But the
agency supplied no rationale justifying its focus on the
supplemental statement, leaving us with a firm sense that the I-589
Form itself was overlooked.
With these allegations as contained in Mboowa's I-589
Form in mind, it is not accurate to characterize Mboowa's claims of
a hip injury and his cousin's beheading as fabrication or
-12-
embellishment when those significant details are contained in one
portion of Mboowa's initial application (the filing that, as the
IJ pointed out, set forth Mboowa's account closest in time to the
underlying events themselves). To be sure, the supplemental
statement attached to the I-589 Form does not go on to reiterate
these factual details, although it does repeat or elaborate on
certain events that were described in the I-589 Form. By the same
token, the supplemental statement describes several additional
episodes not included in the first instance in the I-589 Form's
limited space. Fairly viewed on this record, however, any
differences among the two contemporaneously-filed documents appear
to be elaborations, not internal inconsistencies. Thus, contrary
to the IJ's and BIA's characterization, the record reflects that,
beginning with his very first filing, Mboowa consistently alleged
his hip was injured and his cousin was beheaded. These purported
omissions are not "actually present in the record." Jin Lin, 561
F.3d at 72.
Because two of the three central planks of the agency's
credibility determination are not supported by the record, we will
remand to allow the agency to revisit its credibility determination
in the first instance. See Castañeda-Castillo v. Gonzales, 488
F.3d 17, 24-25 (1st Cir. 2007) (en banc) (remanding to permit
agency to reconsider credibility determination); see also I.N.S. v.
Orlando Ventura,
537 U.S. 12, 16 (2002) ("[T]he proper course,
-13-
except in rare circumstances, is to remand to the agency for
additional investigation or explanation." (quoting Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). We note that the
absence of Mboowa's three-week hospital stay from both his I-589
Form and his supplemental statement persists from among the three
omissions the IJ found "most troubling." That allegation goes to
the heart of Mboowa's claims because it concerns the extent to
which Mboowa was physically harmed for backing President Museveni's
5
political opponent. At the same time, Mboowa's hospital stay is
more plausible in light of his consistent allegation of a broken
hip, and it might now be understood as an additional detail, rather
than an inconsistency. See Kartasheva v. Holder, 582 F.3d 96, 106
(1st Cir. 2009) (noting that an "added . . . detail about [an]
event during [a claimant's] testimony" might not be "implausible
given [his] previous descriptions of the incident").
While the agency identified certain other
inconsistencies, we are unpersuaded that two of those lingering
inconsistencies go to the heart of the matter or amount to
5
We note that the corroborating documents that Mboowa
submitted also undermine the allegations regarding his hospital
stay. Because Mboowa claimed in his testimony that the hospital
where he was treated lost his records, he provided a letter from
his treating physician allegedly reconstructing -- over five years
later -- Mboowa's treatment from memory. But the letter describes
only seven days of treatment (rather than three weeks). While (as
Mboowa protests) this discrepancy might be explained by the lapse
in time, that explanation is difficult to square with the letter's
specific medication dosages.
-14-
discrepancies at all. First, the agency emphasized Mboowa's
varying descriptions of the 2001 beating. But Mboowa's accounts
diverge only slightly and only with respect to the method of that
beating. Mboowa initially alleged that he and his colleague were
both whipped during the encounter; his later accounts specified
that the soldiers used both cow-hide whips and guns to whip and
beat the men. Mboowa ultimately testified that he was beaten with
the soldiers' guns, while his colleague, Sekibuule, was whipped
with cow-hide whips. These differences strike us as "too
immaterial to support a finding that no attack occurred at all,"
Wiratama v. Mukasey, 538 F.3d 1, 6 (1st Cir. 2008) (finding adverse
credibility determination unsupported where the record reflected a
"disagreement over whether [the petitioner] had been stabbed or
merely slashed").
Second, the IJ discredited Mboowa's claim that he was
hospitalized for three weeks following the 2001 beating, in part,
because he "repeatedly stated that he had never taken time off from
his employment." We are unconvinced that there is a discrepancy in
this account, however. Despite Mboowa's explanation that he only
meant vacation time, the IJ did not "credit this explanation as he
consistently said 'a single day' and never specified vacation
-15-
time." Our review of the record, however, indicates Mboowa did at
least imply that he meant vacation time.6
III.
In the ordinary course we do not to attempt to read the
tea leaves. See Castañeda-Castillo, 488 F.3d at 25. The IJ
determined that "the acts of harm [Mboowa] described are plausible
in light of country conditions, and would rise to the level of past
persecution if established," but found his account incredible. On
remand it is within the agency's purview to evaluate what, if any,
impact Mboowa's consistent allegations of his hip injury and his
cousin's beheading have on its adverse credibility determination
and determine whether any of the remaining purported
inconsistencies are sufficient to discredit a portion or all of his
account. The BIA's order is vacated and this matter is remanded
for further proceedings consistent with this opinion.
6
In his supplemental statement Mboowa claimed: "I had never
taken off a single day, that my vacation was long overdue." In his
2009 affidavit he reiterated: "In the three years I had worked with
Corpcom, I had never taken a single day off, and therefore my
vacation was long overdue."
-16-
