LUIS ALFREDO ZARUMA-GUAMAN, Petitioner, v. ROBERT M. WILKINSON, Acting United States Attorney General, Respondent.
No. 20-1533
United States Court of Appeals For the First Circuit
February 9, 2021
Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Kevin P. MacMurray and MacMurray & Associates on brief for petitioner.
Matthew B. George, Senior Litigation Counsel, Office of Immigration Litigation, Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, U.S. Dep‘t of Justice, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, on brief for respondent.
I. BACKGROUND
We start by briefly rehearsing the relevant facts and travel of the case. The petitioner is an Ecuadorian national who entered the United States without a valid entry document on November 4, 2014. He did not get very far: he was apprehended near the southern border later that day. At the time, the petitioner was twenty years old.
The petitioner was interviewed by a border patrol agent the following day. When the interview commenced, the petitioner swore that his responses would be truthful. Asked whether he was in fear of persecution or torture in Ecuador, the petitioner responded in the negative. The interview was recorded in an official report, which the petitioner subsequently refused to sign. This report was titled “Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act,” and we will refer to it as the “sworn statement report.”
The petitioner was detained, and the Department of Homeland Security (DHS) issued an expedited removal order. Later — the record is tenebrous as to the precise date — the petitioner expressed a fear of persecution should he be repatriated, and DHS held a credible fear interview on November 25, 2014. During the credible fear interview, the petitioner claimed that he had been mistreated on approximately ten occasions while in Ecuador by people in his neighborhood and at work. He described being punched, kicked, and insulted due to his indigenous ethnicity (Quechuan) and a podiatric condition. He also claimed that he feared future harm on account of his political affiliation with the Pachacuti party. The petitioner explained that he was unable to report the abuse to the police because he would have been mistreated (although he never said by whom). When asked whether his family members who continued to live in Ecuador had been harmed or threatened, he replied only that his aunt had nearly been shot three months earlier. He speculated that the assault on his aunt was perpetrated by her own grandchildren, whom he alleged to be gang members.
Following the credible fear interview, DHS cited the petitioner as removable under
The petitioner was released on bond in January of 2015. Hearings were held over a span of more than three years, during which time the case was transferred to Boston, Massachusetts. The petitioner testified at the last hearing (April 20, 2018) that he had been bullied since the age of ten until the time he left Ecuador and that the attacks on him sometimes occurred as often as weekly. He added that he did not go to the Ecuadorian police because they “don‘t do anything.” On cross-examination, though, he admitted that he had gone to the police two or three times, but said that he was ignored. He also acknowledged that he had never sought medical treatment as a result of the alleged abuse.
In due course, the IJ denied the petitioner‘s cross-applications for relief and ordered him removed to Ecuador. The IJ‘s denial rested mainly on an adverse credibility determination. The IJ explained, inter alia, that the petitioner‘s inconsistent stories about whether or not he had reported the alleged abuse to the police threw shade on all of his testimony. These inconsistencies, coupled with the absence of any meaningful corroboration, prompted the IJ to invoke the maxim “falsus in uno, falsus in omnibus” and made it impossible to find that the Ecuadorian government had denied the petitioner assistance. In light of this adverse credibility determination, the IJ found no credible evidence to support the petitioner‘s claims of either past persecution or a well-founded fear of future persecution.1 Nor did the relevant country conditions reports prepared by the State Department indicate that it was more likely than not that the petitioner, if repatriated, would be tortured either at the instigation or with the acquiescence of Ecuadorian officials. Because the IJ found that nothing in the record showed that the petitioner had suffered harm or torture by or with the acquiescence of the Ecuadorian government, his claim for CAT protection foundered.
The petitioner appealed to the BIA, training his sights on the adverse credibility determination. He argued that his testimony was consistent and that any discrepancies were inconsequential. Moreover, he belatedly explained that he had gone to the Ecuadorian police in several instances — but because they did not want to help him, he was unable to file a report. Relatedly, he claimed that the absence of any official report was what he meant to convey when he testified that he had never gone to the police. In a secondary line of attack, the petitioner argued that the IJ should not have considered the sworn statement report prepared by border officials following his initial interview because he had refused to sign it.
The petitioner‘s importunings were for naught. The BIA dismissed his appeal, discerning
This timely petition for judicial review followed.
II. ANALYSIS
In this case, the BIA relied largely on the IJ‘s decision. Following a well-beaten path, we treat the BIA‘s decision and the IJ‘s decision as a unit in connection with our review. See Loja-Tene v. Barr, 975 F.3d 58, 60 (1st Cir. 2020).
The petitioner‘s principal assignment of error relates to the denial of his claim for asylum. To obtain a grant of asylum, an alien must carry the burden of showing that he qualifies as a “refugee” within the meaning of the Immigration and Nationality Act.
As phrased, the petitioner‘s challenge to the denial of asylum stands or falls on the IJ‘s adverse credibility determination (which was upheld by the BIA). Such a determination is a finding of fact, see Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009), and the petitioner does not allege any independent error of law. His claim is, therefore, subject to review under the substantial evidence rubric. See id.
The substantial evidence rubric is both familiar and straightforward. As long as the agency‘s credibility determination is “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” we must accept it. Id. (quoting Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)). The extent to which this standard is deferential bears emphasis: “absent an error of law, we will reverse only if the record is such as to compel a reasonable factfinder to reach a contrary determination.” Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008) (citing Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir. 2007)).
Congress has limned a constellation of factors on which an IJ may base a credibility determination:
[T]he demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant‘s or witness‘s account, the consistency between the applicant‘s or witness‘s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant‘s claim, or any other relevant factor.
In arguing against the adverse credibility determination here, the petitioner first suggests that the inconsistencies identified by the agency are not inconsistencies at all. This suggestion is flatly belied by the record: the discrepancies pointed out by the IJ are apparent,2 and they supply specific reasons to warrant a finding that the petitioner testified untruthfully regarding facts related to the merits of his claims for relief. No more is exigible to debunk the suggestion that discrepancies did not exist. See Zeru v. Gonzales, 503 F.3d 59, 69-70 (1st Cir. 2007); Zheng v. Gonzales, 464 F.3d 60, 63-64 (1st Cir. 2006).
The petitioner‘s next contention is equally unavailing. He says that the inconsistencies, even if manifested in the record, are “a very small portion of the testimony” and represent “innocent mistake[s]” that are “wholly inadequate” to support an adverse credibility determination. This contention presumably attempts to draw sustenance from the so-called “heart of the matter” rule, under which inconsistencies were required to be central to an alien‘s claim in order to impugn his credibility. See Rivas-Mira, 556 F.3d at 4-5. But Congress — well before the proceedings in this case — consigned the “heart of the matter” rule to the scrap heap by passing the REAL ID Act. See id. at 4. The REAL ID Act, which governs this case, replaced the “heart of the matter” rule with a totality-of-the-circumstances approach. See
We add, moreover, that whether the inconsistencies are the product of mistake or mendacity is not dispositive. On this petition for review, our singular focus is whether, in light of the record as a whole, the inconsistencies are of a type and kind that substantially support the IJ‘s adverse credibility determination. We think it clear that the inconsistencies apparent in this record pass through this screen.
Grasping for straws, the petitioner submits that because the IJ did not make any express comment about the petitioner‘s demeanor, the adverse credibility determination stands on shaky ground. We do not agree. A witness‘s demeanor is, of course, a relevant integer in the credibility calculus and — as a general matter — a judicial officer who sees and hears a witness has a superior coign of vantage in assessing that witness‘s credibility. See Jianli Chen v. Holder, 703 F.3d 17, 24 (1st Cir. 2012). Even so, specific findings about a witness‘s demeanor are not essential to an adverse credibility determination.3 See id. (describing IJ‘s observations of witness‘s demeanor as merely “fortif[ying]” credibility determination); cf. United States v. Rodriguez-Estrada, 877 F.2d 153, 158 (1st Cir. 1989) (describing jurors as “the judges of the witnesses’ demeanor and credibility” even though jurors make no specific findings about a witness‘s demeanor).
So, too, the petitioner offers no authority to support his ipse dixit that the agency should not have considered as evidence the sworn statement report prepared by border agents because the petitioner later refused to sign it. This argument amounts to deeming the evidence as inadmissible hearsay — but as the petitioner‘s statement was contained in an official report made in the course of agency business, see
Here, the sworn statement report bore sufficient indicia of reliability. For one thing, the petitioner does not refute that the report is in fact a sworn statement, as he himself promised under oath that it would be at the beginning of the interview. For another thing, the sworn statement report bore the contemporaneously affixed signature of a third-party witness. And in any event, the fact that the petitioner refused to sign the sworn statement report after it was prepared goes to its weight, not to its admissibility. See
The petitioner also suggests that a statement made in his credible fear interview should not have been given any weight because the interview notes contain a disclaimer to the effect that the document is not a verbatim transcript of the interview. But “[s]trict rules of evidence do not apply in immigration proceedings,” Jianli Chen, 703 F.3d at 23 (citing Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996)), and the broad authority conferred by
The petitioner has a fallback position: he says that he adequately explained his inconsistencies. But even though the petitioner did offer an explanation, not all explanations are sufficient to relieve an alien of the consequences of proven inconsistencies. See id. at 25; Rivas-Mira, 556 F.3d at 5. Here, the petitioner‘s explanation was rejected by the IJ, who — especially in view of the utter lack of any corroboration — impliedly found it to be threadbare and unconvincing. Given the weakness of the explanation, the IJ‘s rejection of it was reasonable. We conclude, without serious question, that the record does not compel a contrary finding. The circumstances relevant to this conclusion include the fact that, on various occasions, the petitioner claimed that fear impelled
In the last analysis, it is the purview of the IJ, within wide limits, to accept or reject an explanation for demonstrated testimonial inconsistencies. Chen v. Gonzales, 418 F.3d 110, 114 (1st Cir. 2005) (“That the IJ might have accepted [the petitioner‘s] explanations of his inconsistencies is not to say she was required to do so.“) Those limits were not exceeded (or even closely approached) in the case at hand. Thus, the IJ‘s adverse credibility determination is supported by substantial evidence in the record, and the BIA‘s denial of the petitioner‘s asylum claim must be upheld.
We need go no further. The petitioner‘s claim for withholding of removal requires a showing of a clear probability that, if repatriated, he would be persecuted on account of a protected ground. See
III. CONCLUSION
For the reasons elucidated above, we deny the petition for judicial review.
So Ordered.