Filed: Jul. 13, 2015
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-3477 _ EDDIE YENNER MURPHY KARPOLEH, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A088-934-419) Immigration Judge: Honorable Andrew R. Arthur _ Submitted Pursuant to Third Circuit LAR 34.1(a) on June 25, 2015 Before: CHAGARES, KRAUSE, and BARRY, Circuit Judges. (Filed: July 13, 2015) _ OPINION _ CHAGARES, Circu
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-3477 _ EDDIE YENNER MURPHY KARPOLEH, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A088-934-419) Immigration Judge: Honorable Andrew R. Arthur _ Submitted Pursuant to Third Circuit LAR 34.1(a) on June 25, 2015 Before: CHAGARES, KRAUSE, and BARRY, Circuit Judges. (Filed: July 13, 2015) _ OPINION _ CHAGARES, Circui..
More
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3477
____________
EDDIE YENNER MURPHY KARPOLEH,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-934-419)
Immigration Judge: Honorable Andrew R. Arthur
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
on June 25, 2015
Before: CHAGARES, KRAUSE, and BARRY, Circuit Judges.
(Filed: July 13, 2015)
____________
OPINION
____________
CHAGARES, Circuit Judge.
Petitioner Eddie Karpoleh seeks review of a Board of Immigration Appeals
(“BIA”) order affirming the Immigration Judge’s (“IJ’s”) denial of his request for asylum
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
pursuant to 8 U.S.C. § 1158, withholding of removal pursuant to 8 U.S.C. § 1231(b)(3),
and the Convention Against Torture (“CAT”). For the following reasons, we will deny
the petition for review.
I.
We write solely for the parties and therefore recite only the facts necessary to our
disposition. Karpoleh gave the following account before the IJ: he claimed he was a
police officer in Liberia during the administration of President Charles Taylor. Appendix
(“App.”) 1406-07. He earned the enmity of Taylor loyalists by reporting a stockpile of
illegal weapons to General Opande of the United Nations (“UN”) peacekeeping force in
August 2003. App. 422. During the post-Taylor interim government, Liberians United
for Reconciliation and Democracy (“LURD”) rebels detained and beat Karpoleh
overnight before UN peacekeeping forces secured his release. App. 426, 1407.1 After
his release, the interim government arrested him on charges of attempting to overthrow
the government. App. 532. General Opande helped get him out of prison and advised
him to flee the country. App. 535, 1409. While living in the Netherlands, he received an
invitation from defense counsel for Chuckie Taylor, Charles Taylor’s son, to fly to
Florida and testify on Chuckie Taylor’s behalf. App. 992, 1411. Taylor loyalists made
threatening calls to him and his fiancée, now wife, to encourage his testimony. App. 868,
1412. When Karpoleh arrived in Florida and explained that he had little knowledge of
the events at issue in the trial, Chuckie Taylor’s friends and lawyers pressured him to
1
A physician submitted a declaration on Karpoleh’s behalf attesting that the many scars
on Karpoleh’s body were consistent with the beatings he described suffering at LURD’s
hands. App. 825-29.
2
give false testimony. App. 992, 1412-13. He refused, fled from Miami, and eventually
sought asylum in the United States. App. 1413-14.
The IJ found Karpoleh was not credible based on a large number of
inconsistencies in his story. First, Karpoleh said he reported the illegal weapons
stockpile to General Opande of the UN peacekeeping forces in August 2003, but Opande
did not enter the country until October 2003. App. 437. Second, Karpoleh claimed he
was detained by LURD for one day, but a letter from Opande asserts it was several days.
App. 450. Third, Opande’s letter does not even reference Karpoleh’s subsequent
detention by the interim government or the role Karpoleh says he played in securing his
release. App. 560-61. Fourth, Karpoleh claimed he was never in the army and never
carried a gun, but his wife testified otherwise, App. 672, a news article Karpoleh
submitted appears to refer to him as “General Eddie Murphy,” see App. 378,2 and a letter
from journalist C.Y. Kwanue — also submitted by Karpoleh — describes Karpoleh as a
“former fighter[s]” App. 993. Fifth, the IJ found it implausible that Chuckie Taylor
would go to such lengths to secure Karpoleh’s testimony if, as Karpoleh testified, Taylor
and his allies already distrusted him and had many other witnesses capable of testifying.
App. 196-97.
Because Karpoleh’s testimony was not credible, the IJ found he could not credit
his proof of past persecution or fear of future persecution. App. 201-02. The IJ therefore
rejected Karpoleh’s petition. The IJ further noted that even if Karpoleh’s testimony had
2
Karpoleh claimed in his asylum application that the author was using his middle name,
“Murphy.” App. 1408.
3
been credible, there was sufficient proof of changed conditions in Liberia to discount his
fear of future persecution and reject his petition on that ground as well. App. 204-05.
On appeal, the BIA found no clear error in the IJ’s adverse credibility finding and
his finding of changed country conditions. App. 7 n.3, 8. Karpoleh timely filed the
present petition for review.
II.3
We will uphold a BIA decision if it is supported by substantial evidence. Dia v.
Ashcroft, 353 F.3d 228, 248 (3d Cir. 2003) (en banc). We review an agency’s adverse
credibility determinations under the substantial evidence standard as well. Xie v.
Ashcroft,
359 F.3d 239, 243 (3d Cir. 2004). “[A]dverse credibility determinations based
on speculation or conjecture, rather than on evidence in the record, are reversible.”
Dia,
353 F.3d at 249 (quotation marks and citation omitted).
III.
To obtain asylum, an applicant must show that he is “unwilling or unable to return
to his home country because of ‘[past] persecution or [a] well-founded fear of [future]
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.’” Chavarria v. Gonzalez, 446 F.3d 508, 515-16 (3d Cir.
2006) (quoting 8 U.S.C. § 1101(a)(42)(A)). A showing of past persecution gives rise to a
rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. §
1208.13(b)(1). The Government may rebut this presumption if a preponderance of the
3
The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3). This Court has
jurisdiction pursuant to 8 U.S.C. § 1252(a).
4
evidence shows that there “has been a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution . . . .” 8 C.F.R. §
1208.13(b)(1)(i)(A).
To obtain withholding of removal, an applicant must demonstrate a clear
probability that she would face persecution on removal to a particular country. INS v.
Stevic, 467 U.S. 407, 429-30 (1984). “The ‘clear probability’ standard is a more rigorous
standard than the ‘well-founded fear’ standard for asylum.” Zubeda v. Ashcroft,
333
F.3d 463, 469 (3d Cir. 2003) (citing Janusiak v. INS,
947 F.2d 46, 47 (3d Cir. 1991)).
“Thus, if an alien fails to establish the well-founded fear of persecution required for a
grant of asylum, he or she will, by definition, have failed to establish the clear probability
of persecution required for withholding of deportation.”
Id. at 469-70.
Because Karpoleh filed his asylum application after May 11, 2005, the provisions
of the REAL ID Act governing credibility determinations apply. See Chukwu v. Att’y
Gen., 484 F.3d 185, 189 (3d Cir. 2007). Under the REAL ID Act, credibility
determinations may be based on, among other things, “the demeanor, candor, or
responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or
witness’s account . . . the internal consistency of each such statement, the consistency of
[written and oral] statements with other evidence of record . . . , and any inaccuracies or
falsehoods in such statements.” 8 U.S.C. § 1158(b)(1)(B)(iii).
The BIA found Karpoleh was unable to establish past persecution or a well-
founded fear of future persecution because his testimony was not credible. Karpoleh
argues on appeal that the BIA failed to consider the totality of the circumstances or
5
properly weigh his explanations for the apparent inconsistencies in the record. In
particular, Karpoleh explained to the IJ and the BIA that near misses with respect to the
dates he met General Opande (August as opposed to October) and was held by LURD
(one day as opposed to several) were understandable given the events happened ten years
before he submitted his asylum application, and the detention was naturally disorienting.
He also argued that General Opande’s silence about helping obtain his release from
prison should not be held against him when he could not control what Opande chose to
remember of their history, which may have been less remarkable for the general than the
prisoner. Finally, he asserted that his wife’s testimony regarding his military service
should count for relatively little when she was not in Liberia and did not know him
during the relevant time period, and he had submitted substantial evidence that he was
never in the army.
Each of these explanations may be plausible, and yet they do not compel us to
conclude that the BIA’s analysis was in error. The mere existence of alternate
explanations for inconsistencies in the record does not preclude an adverse credibility
finding based on those inconsistencies. Nor does the existence of some corroborating
evidence. Far from salvaging Karpoleh’s credibility, the totality of the circumstances
shows that, whatever explanations there may be for individual inconsistencies, the record
is replete with contradictions significant enough to support an adverse credibility
determination. In conclusion, we find the BIA’s decision to deny Karpoleh’s application
for asylum and withholding of removal is supported by substantial evidence.
IV.
6
An applicant for relief under the CAT bears the burden of establishing “that it is
more likely than not that he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 208.16(c)(2).4 The standard for relief “has no subjective
component, but instead requires the alien to establish, by objective evidence that he is
entitled to relief.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (quotation
marks omitted). A claim for relief under the CAT is analytically separate from claims for
asylum and withholding of removal, and “a decision-maker must review claims for relief
under the [CAT] and consider relevant country conditions even where adverse credibility
determinations have precluded relief under the [Immigration and Nationality Act].”
Tarrawally v. Ashcroft,
338 F.3d 180, 188 (3d Cir. 2003).
Here, both the IJ and the BIA considered Karpoleh’s CAT claim apart from his
INA applications. They found that Karpoleh lacked credible testimony that he faced
torture if removed either to the Netherlands or Liberia. They also found that conditions
in Liberia had so changed that Karpoleh’s evidence of past persecution, if credible, would
not establish a threat of torture at the instigation or acquiescence of the Liberian
government today. Given that other defense witnesses in the Chuckie Taylor trial have
returned to Liberia without incident, Liberia’s security has improved since Karpoleh left,
and there are no reports of individuals being tortured based on their previous affiliations,
4
“For an act to constitute torture under the [CAT] and the implementing regulations, it
must be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally
inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation of or with the
consent or acquiescence of a public official who has custody or physical control of the
victim; and (5) not arising from lawful sanctions.” Auguste v. Ridge, 395 F.3d 123, 151
(3d Cir. 2005).
7
neither the IJ nor the BIA erred in finding changed country conditions. The BIA’s denial
of relief under the CAT is supported by substantial evidence.
V.
For the foregoing reasons, we will deny Karpoleh’s petition for review.
8
