BREDAN CHIMA CHUKWU, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES; UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Respondents
No. 05-4068
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
April 13, 2007
484 F.3d 338
Before: RENDELL, ROTH and JOHN R. GIBSON, Circuit Judges.
On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA No. A79-419-894)
(Opinion Filed: April 13, 2007)
Robert A. Cini [ARGUED]
Law Offices of Howard Rosengarten
853 Broadway, Suite 1011
New York, New York 10003
Counsel for Petitioner
Bredan C. Chukwu
Richard M. Evans
Paul Fiorino
Carl H. McIntyre, Jr. [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondents
Attorney General of the United States;
United States Department of Homeland Security
_________________
* Honorable John R. Gibson, Senior Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
JOHN R. GIBSON, Circuit Judge:
Bredan1 Chima Chukwu, a Nigerian citizen, petitions for review of the order of the Board of Immigration Appeals denying Chukwu‘s application for asylum, withholding of removal, and relief under the Convention Against Torture. The BIA adopted the Immigration Judge‘s finding that Chukwu‘s testimony was not credible because of unexplained inconsistencies between Chukwu‘s testimony, prior sworn statements, and his supporting documents, and that Chukwu failed to prove his case by sufficient credible evidence. We conclude that the IJ failed to take into account record evidence that did explain many of the discrepancies on which the IJ based his adverse credibility determination. Further, the IJ did not determine whether it was reasonable to expect Chukwu to produce corroboration of the facts which the IJ found should have been corroborated. We will therefore grant review, vacate, and remand for further proceedings.
Chukwu arrived in this country on October 11, 2001, carrying a false United Kingdom passport in the name of George Brendon, which he had purchased in Togo. At the Miami airport, he signed a sworn statement admitting that he was not a British citizen, but stating that he was a resident of Ghana. He said that his purpose in coming to the United States was “to see somebody.” When asked why he left his country, he stated: “I left, because I am finding life very difficult,” and he said he would be harmed if he returned to his country. He stated that he had never been arrested before, at any time or any place.
On August 20, 2002, Chukwu filed an application for asylum and withholding of removal in which he stated that he was a Nigerian citizen, though born in Ghana, and that he feared persecution on the ground of his politics, specifically his membership in the Movement for the Actualization for the Sovereign State of Biafra (MASSOB). His application stated that he had been arrested and beaten many times because of his membership in MASSOB and that he feared that he would be “arrested, tortured or killed by the present government of Nigeria” because of that membership. He listed five specific dates on which he had been arrested.
At his hearing before the IJ, Chukwu testified that he had been born in Ghana of a Nigerian family in 1958 and had
Chukwu returned to Lagos, where he attended another rally on August 11, 2000. Again, the police arrived, the people panicked, and Chukwu was picked up along with others and taken to the police station, where he was detained and beaten. Again, he was only released upon signing papers renouncing MASSOB.
The next time he was picked up, on February 10, 2001, he was simply walking down the street near his house in Lagos. The police asked his name, then took him in to ask him where he was on January 7, which had been the day of a clash between MASSOB and the police. He was released without mistreatment. A similar incident occurred on May 21, when police came to his house to collect him. On that occasion, police took him to the police station, but questioned and released him without beating him.
On July 24, 2001, police again came to Chukwu‘s house, but he was not home. They told his wife they were looking for him. On hearing this news, Chukwu decided to stay away from home. In September, he traveled to Togo
For corroborating evidence, Chukwu submitted his Nigerian passport, his MASSOB membership card and a letter from the organization confirming his membership, an affidavit from his brother Emeka corroborating his story about the arrest in the bar, and a judicial decree granting his wife‘s petition to divorce him. The divorce decree recited his wife‘s testimony that Chukwu had
brought a bad name to the family as he is a member of movement for the Sovereign State of Biafra (MASSOB). As a member of this group he has times without number been arrested and detained by the State Security Service. To forestall further arrest, the Respondent has to go into hiding and eventually traveled out of the country.
She said her love for Chukwu had “deteriorated due to this involvement with MASSOB.” Chukwu also introduced correspondence from his solicitors concerning the divorce.
The IJ found that Chukwu was not credible because of inconsistencies, implausibilities, and lack of corroboration for his testimony. In a short, but reasoned opinion, the BIA adopted and affirmed the IJ‘s decision, specifically agreeing with the IJ that “in light of the inconsistencies between the respondent‘s testimony, his supporting documents, and his sworn statement, and the respondent‘s failure [to] adequately explain the discrepancies, the respondent failed to meet his burden to establish his eligibility for the request[ed] forms of relief with sufficient credible evidence.”
II.
A grant of asylum allows an alien who is otherwise subject to removal to stay in the United States because he is a
Withholding of removal is a remedy distinct from asylum and confers only the right not to be deported to a particular country, rather than the right to stay in this one. Abdulai, 239 F.3d at 545. An applicant can establish the right to withholding of removal by showing a clear probability that his life or freedom would be threatened on account of one of the protected grounds in the proposed country of removal,
Finally, an applicant can be eligible for withholding of removal under the Convention Against Torture if he shows
Only the decision by the BIA is a “final order of removal,” Abdulai, 239 F.3d at 548-49, subject to our review, id. We therefore do not review the IJ‘s opinion in its own right. Id. However, where as here, the BIA adopts the findings and reasoning of the IJ, the IJ‘s opinion forms the substance of the final order and we must review it accordingly. Id. at 549 n.2.
Where the BIA has adopted the IJ‘s findings, we review those findings under the substantial evidence standard, upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.”
Where the administrative decision fails to consider or mention evidence that is on its face relevant and persuasive, the proper course is to remand for further consideration by the IJ. See Caushi v. Att‘y Gen., 436 F.3d 220, 227, 231 (3d Cir. 2006); Gao v. Ashcroft, 299 F.3d 266, 277 (3d Cir. 2002); Sotto v. United States, 748 F.2d 832, 837 (3d Cir. 1984).
Our review of the inconsistencies cited by the IJ leads us to conclude that the IJ failed to take into account relevant and persuasive evidence that would not only explain the alleged inconsistencies, but would also support Chukwu‘s allegations of political persecution.
The first inconsistency cited by the IJ is that Chukwu claimed to have lived with his wife and child in Lagos until he left Nigeria, yet his wife testified in the divorce proceeding that he had abandoned the family in 1999. The record shows that both facts appear to be true, and they are not inconsistent with each other. Review of the record shows that the divorce was based on “Desertion,” “Irresponsib[ility],” and “No more love.” The gist of Mrs. Chukwu‘s assertions recited in the decree was that Chukwu‘s MASSOB activities were causing the family trouble. Since Chukwu did not join MASSOB until 2000, the activities Mrs. Chukwu complained of evidently occurred after 1999. The record is certainly consistent with Chukwu spending some time away from Lagos after 1999, as he was in Port Harcourt in 2000 when he joined MASSOB and he was arrested in Abia state in May 2000. He left his job in Lagos at the end of 1999, so he was apparently free to travel. He also testified that although he was still living with his wife in 1999, he was having some family trouble at that time and that “sometimes I would leave and travel and then come back or go to someplace and come
According to the Divorce petition, your wife is asking for the dissolution of the marriage on the grounds that you had intermittently and continuously abandoned her for a period of about 2 years without an exact knowledge of your whereabout [sic], and also of the fact that the federal authorities, had on several occasion [sic] detained, intimidated and harassed her on the grounds of your membership of MASSOB.
(emphasis added). The record supports the conclusion that Chukwu was a less than attentive husband for his last two years in Nigeria, that he was traveling around the country, and that Mrs. Chukwu was aggrieved by his absences, but it does not support the conclusion that he never came home at all after 1999. Moreover, Mrs. Chukwu‘s assertions recited in the divorce decree substantially strengthen Chukwu‘s claim to have been involved in MASSOB and to have incurred the wrath of the government on account of that involvement.
The IJ also found it inconsistent that Chukwu said the police were looking for him in July 2001, yet he was able to use his Nigerian passport to cross into Togo, back to Nigeria, then again into Togo in September 2001 without being arrested or detained. Chukwu explained that Nigerian police do not have a database that would alert police in one area to the fact that police in another area were searching for a person. The IJ did not discuss this explanation or find that it was not adequate. The IJ‘s conclusion of inconsistency in this point seems to be based on assumptions about the capabilities of Nigerian law enforcement that have no support in the record. See Dia, 353 F.3d at 249-50 (implausibility must have support in record such as background evidence of country conditions).
The IJ also considered it problematic that Chukwu‘s MASSOB membership card listed an address in Imo state, which is in the east of Nigeria, rather than Chukwu‘s Lagos
Finally, while the IJ relied on real inconsistencies between Chukwu‘s airport statement and his later asylum application and testimony, we do not believe that either the IJ or the BIA meant for the decision to hinge entirely on such inconsistencies. In his airport statement, Chukwu said he was a resident of Ghana, that he had never been arrested anytime or anywhere, and that he was coming to the United States “to see somebody” and because he found life difficult. These statements conflict with his testimony that he lived in Nigeria, that he had been arrested repeatedly, and that he came to the United States to flee persecution. “It is established in this Circuit that inconsistencies between an airport statement and an asylum seeker‘s testimony before an IJ is not sufficient, standing alone, to support a BIA finding that the petitioner was not credible.” Fiadjoe v. Att‘y Gen., 411 F.3d 135, 159 (3d Cir. 2005). We cannot conclude that the IJ and BIA would have reached the same decision based on the airport statement alone, without regard to the other inconsistencies that have been explained by record evidence that went unmentioned in the IJ‘s opinion. See Dia, 353 F.3d at 257-58;
Because the IJ relied on inconsistencies that were explained by evidence in the record, with no explanation of why the probative evidence in the record might have been rejected, we must remand for consideration of that evidence.
B.
The IJ also based his adverse credibility determination in part on Chukwu‘s failure to corroborate certain aspects of his claim. Our cases follow the BIA‘s avowed policy of considering separately the issues of credibility and failure to provide corroboration. Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir. 2005); Abdulai v. Ashcroft, 239 F.3d 542, 551 n.6 (3d Cir. 2001) (citing In re S-M-J-, 21 I&N Dec. 722 (1997)). In this case, as in Chen, “[t]he IJ seems to have impermissibly blurred the line between the credibility of a claimant and the adequacy of proof to support the claim of asylum.” 434 F.3d at 221.
Corroboration of the applicant‘s story is not a prerequisite for relief, and the BIA may grant asylum or withholding solely on the basis of the applicant‘s credible
Chukwu did corroborate his story in part by supplying his Nigerian passport, his MASSOB card and a letter from MASSOB, his brother‘s affidavit concerning the incident in the bar in Lagos, his divorce decree, news stories about MASSOB‘s troubles with the government, and the State Department country report.
The IJ wrote that Chukwu failed to provide medical, police, or court reports to corroborate his arrests and beatings. Chukwu did not testify that he ever received medical treatment for his injuries or that he was ever charged with any
The IJ also stated, “Respondent has presented no evidence whatsoever to indicate when he became a member of
C.
The IJ‘s opinion adverted to some doubt as to whether, even if Chukwu‘s contentions about his arrests were correct,
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We will GRANT the Petition for Review of the order of the BIA, VACATE the order, and REMAND for further proceedings consistent with this opinion.
Notes
Pub. L. No. 109-13, Div. B, § 101(a)(3), amendingThe testimony of the applicant may be sufficient to sustain the applicant‘s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant‘s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant‘s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.