Mariko v. Holder
2011 U.S. App. LEXIS 1400
| 1st Cir. | 2011Background
- Ya Ya Deen Mariko and Tiranke Kaba, Guinean nationals, petition for review of BIA decisions affirming IJ's denial of withholding of removal and CAT protection.
- Petitioners conceded removability; they cross-applied for relief and for CAT protection after entering US illegally; proceedings began in 2004.
- IJ denied relief primarily due to adverse credibility findings based on Mariko's testimony and alleged inconsistencies and fraudulent documents.
- Mariko testified to past torture and RPG membership; documents and medical records presented inconsistently; some documents allegedly obtained abroad and then fraudulently.
- BIA adopted IJ's credibility ruling; petitioners filed motion to remand while appeal was pending, seeking relief based on changed circumstances (birth of daughter Su-ad, AG opinion Matter of A-T-).
- BIA denied remand, concluding no credible change in circumstances that would warrant reopening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Withholding of removal credibility standard under REAL ID Act | Mariko's credibility supported relief; IJ erred in reliance on documents and demeanor. | IJ properly discounted credibility; inconsistencies and fraudulent documents undermine probative value. | Substantial evidence supports credibility finding; withholding denial affirmed. |
| CAT protection dependent on credibility | CAT claim should be evaluated independently of withholding. | CAT claim intertwined with withholding; adverse credibility forecloses CAT relief. | CAT denial affirmed due to same credibility deficiencies. |
| Motion to remand/reopen based on changed circumstances | Birth of daughter and Matter of A-T- create material changes enabling relief. | No derivative or new change in applicable law; A-T- not controlling; change must directly affect applicant. | BIA did not err; denial of remand upheld. |
| Standards for change in circumstances and applicability to derivative claims | Kaba's asylum claim could rely on changed circumstances affecting family risk. | Parent cannot be derivative beneficiary of child’s asylum claim; changed-law argument rejected. | Remand properly denied; no basis to reopen. |
Key Cases Cited
- Seng v. Holder, 584 F.3d 13 (1st Cir. 2009) (directs focus to final BIA orders)
- Rivas-Mira v. Holder, 556 F.3d 1 (1st Cir. 2009) (reviewing IJ's decision when BIA adopts)
- López-Castro v. Holder, 577 F.3d 49 (1st Cir. 2009) (substantial evidence standard for findings of fact)
- Da Silva v. Ashcroft, 394 F.3d 1 (1st Cir. 2005) (substantial evidence review framework)
- Bebri v. Mukasey, 545 F.3d 47 (1st Cir. 2008) (totality-of-the-circumstances credibility assessment)
- Pan v. Gonzales, 489 F.3d 80 (1st Cir. 2007) (cumulative inconsistencies may support credibility ruling)
- Olujoke v. Gonzales, 411 F.3d 16 (1st Cir. 2005) (support for substantial evidence standard in credibility)
- Chhay v. Mukasey, 540 F.3d 1 (1st Cir. 2008) (REAL ID Act credibility factors and exhaustion requirements)
- Fesseha v. Ashcroft, 333 F.3d 13 (1st Cir. 2003) (abuse of discretion standard for BIA decisions)
- Kechichian v. Mukasey, 535 F.3d 15 (1st Cir. 2008) (affirming denial of remand based on changed circumstances)
- Burbiene v. Holder, 568 F.3d 251 (1st Cir. 2009) (grounds for asylum must relate to the applicant's situation)