Faye v Holder, No. 09-1229 (1^st Cir. Sept. 2, 2009)

Marguette Faye is a Senegalese woman who overstayed a six-month tourist visa grantedin 2000. A Notice to Appear was issued on July 10, 2003, and an Immigration Judge found her removable. In January 2005, Faye filed for asylum, one year after her deadline for filing, claiming membership of a persecuted social group: “women who had a child out of wedlock/are considered adulterers because they gave birth to a child allegedly not their husband’s/have been abused by their husbands.”

Though Faye offered a psychological report to explain her delay in filing for asylum, the Immigration Judge found that her mental illness did not amount to extraordinary circumstances excusing the delay.  In rejecting Faye’s withholding of removal, the Judge found Faye to be a credible witness, but found no “persuasive evidence” that Faye would face persecution if returned to Senegal. Faye’s Convention Against Torture claim was also denied, with the Judge finding there was no evidence she would be tortured if returned.

The Board of Immigration Appeals reversed the Immigration Judge’s ruling that the asylum claim was barred, but also found the error to be harmless, as Faye did not prove persecution based on membership of a protected group. The BIA affirmed the remainder of the Immigration Judge’s decision. Faye petitioned to review and the 1^st Circuit remanded the case to further consider whether petitioner was a member of a protected social group. The BIA issued a new opinion, holding that the proposed group was too “amorphous” and the proposed protected group’s boundaries were too ill-defined to determine the group’s membership.

On appeal, the 1^st Circuit deferred to the BIA’s definition of a “social group” for the purposes of asylum claims: groups “must share a common, immutable characteristic, wither innate or based on past experiences.” Whether this characteristic exists depends on two elements: if the group is socially visible and if it is sufficiently particular.  The Court determined that substantial evidence supported the conclusion of the BIA, that Faye had failed to present sufficient evidence to prove either element. In particular, it pointed out that Faye only testified regarding how her family, not Senegalese society, would view her, and did not present evidence on how similarly situated women are viewed.  The Court similarly rejected Faye’s claim of asylum based on religious beliefs, holding that Faye failed to present evidence showing persecution based her beliefs.

Chen, et. al. v. Holder., No. 08-2398 (1^st Cir. Aug. 27, 2009)

Ru Xiu Chen and Xiu Jin Zheng are a married couple who fled China after twice violating that country’s one-child policy. Zheng claimed that in 1991, when she was pregnant with her second child, she was visited by government officials who demanded she abort the 8-month-old fetus. After Chen and Zheng protested, Zheng was forcibly removed from her mother-in-law’s house, taken to the hospital, and given an injection that caused her to deliver her child stillborn. Zheng became pregnant for a third time soon after this incident, and delivered a daughter in secret in April 1992. After Chinese officials learned of this second birth, they came looking for the couple, apparently intending to have them sterilized.

Chen fled China, arriving in the U.S. in July, 1992. He applied for asylum, withholding, and CAT protection; he later applied for and received advanced parole in 1994 to go back to China for approximately two weeks to visit his cancer-stricken father. Zheng entered the U.S. without inspection on July 20, 1995. Zheng filed for asylum in 2004.

On September 6, 2005, Chen and Zheng testified at hearing. The Immigration Judge noted that she was troubled by “the changing testimony” and Zheng’s hesitancy on the stand. The judge went so far as to continue the hearing several times to allow Zheng and Chen to submit evidence and offer witness testimony to support their claims and possibly clear up the discrepancies. Zheng’s sister testified, and medical records from Zheng’s U.S. doctor we offered, but despite the multiple continuances, the doctor never ended up testifying.  On May 30, 2007, the judge denied both petitions, saying neither offered the necessary credible, consistent, and detailed testimony needed to meet their burden. The Board of Immigration Appeals adopted the findings and affirmed the decision.

Reviewing the Immigration Judge and Board of Immigration Appeals’ determination under the deferential substantial evidence standard, the court assessed the discrepancies found in Chen and Zheng’s testimony. While  that several discrepancies were unsupported by the record (a fact the government conceded), the court found that so many other discrepancies remained that the adverse credibility determination was supported by substantial evidence.

The court identified multiple inconsistencies in the testimony and the fact that Zheng’s demeanor in testifying made the Immigration Judge skeptical. First, the court noted inconsistencies in Zheng’s testimony regarding where she hid after Chen fled, including omitting the addresses at which she stayed and later never offering an explanation for the omission or easily obtainable evidence to clear it up. Also, Zheng’s testimony varied regarding the number times family planning officials visited her at home. The court also found it troubling that Zheng delayed reporting her abortion to both her sister and a doctor in the U.S. As for Chen, the Court labeled as “inherently implausible” his  account of officials hiding in wait for him at the hospital where his father was receiving treatment for cancer. This is compounded by the fact that he travelled using a passport in his own name stayed at a hotel under his own name, adding doubt to the claim that he was blacklisted.

Sihombing v. Holder, No. 08-2119 (1^st Cir. Sept. 22, 2009)

Arnold Sihombing, a citizen of Indonesia, left Indonesia fearing persecution from the Democratic Party of Indonesia. Leaving his wife and daughter behind, he first travelled to Singapore and the Philippines for about one week each, before returning to Indonesia to obtain a U.S. visa. He arrived in New York on March 10, 2001 as a non-immigrant visitor authorized to remain through September 9, 2001. Mr. Sihombing overstayed this date and on June 3, 2004, was ordered removed in absentia when he did not appear at his hearing. He filed to reopen the case and after his motion was granted, filed a motion for political asylum.

Mr. Sihombing appeared before the Immigration Judge on November 1, 2006 and offered testimony to support his application.  The Judge found that his application was pretermitted because it was filed more than 4 years after he entered the country and did not show changed or extraordinary circumstances that would allow such an untimely filing. On appeal, the BIA adopted the Immigration Judge’s reasoning. Mr. Sihombing appealed to the 1^st Circuit, seeking review of the denial of withholding and arguing that the record is insufficient for review due to omissions.

The Immigration Judge and Board of Immigration Appeals found that the most serious example of past persecution was one non-violent visit by Democratic Party guards to Mr. Sihombing’s home, and this incident would not make him eligible for withholding. The Court of Appeals agreed, noting that this was far less severe than in other cases where claims of past persecution had been rejected. With the opportunity for withholding based on past persecution closed, the Court allowed that withholding could be granted if there is a clear probability of future persecution, but that the petitioner failed to establish that such persecution was a clear probability. According to the Court, the Immigration Judge took into account that Sihombing left his wife and child behind and that no one in his family had been harmed in the 6 years since he fled. Most importantly, the judge pointed out that the petitioner had voluntarily returned to Indonesia to obtain a visa, and a voluntary return undercut's an applicant's claim that he will more likely than not be subject to persecution. Applying the substantial evidence standard, the court refused to reverse the Immigration Judge's findings, holding that the record would not compel a reasonable factfinder to reach a contrary conclusion.

The Court also addressed Mr. Sihombing’s claim that the record is insufficient to provide adequate review, saying that the indecipherable or indiscernible passages could be discerned from context and petitioner had failed to show that the missing information has caused him prejudice.

Seng v. Holder, No. 08-2485 (1st Cir. Oct. 8, 2009)

Sovannary Seng entered the U.S. from Cambodia on June 1, 2002, on a four-month visitor’s visa. After overstaying, Seng submitted an application for asylum, citing a fear of persecution based on political affiliation. The application was rejected by the Department of Homeland Security, which served her with a notice to appear, charging that she was subject to removal.

In Immigration Court, Seng conceded removability and testified on behalf of her cross-application for asylum. She testified that her and her husband, members of the Sam Rainsy Party, were both arrested for their political beliefs; her husband once returned home beaten and bruised. The record shows that Seng’s testimony before the judge was riddled with inconsistencies, including the year she joined the party and when her husband fled Cambodia. The judge found the testimony was not credible and denied Seng’s claims for relief. Seng appealed, and the Board of Immigration Appeals affirmed the Immigration Judge’s decision.

The 1^st Circuit Court of Appeals applied the “heart of the manner” rule, which says that where there is an adverse credibility finding, “the determination must rest on discrepancies or inconsistencies that are central to the claim.” The Court found that the discrepancies in Seng’s testimony were substantial and cut to the heart of her claim. For example, Seng testified that she joined the Sam Rainsy Party in 1993, which was five years before the party was formed. To the court, a discrepancy such as this fundamentally undercut her claim that she was politically involved and was persecuted for this involvement. Terming her account "confused," the court found it lacked the specificity and directness required to carry an alien’s burden of proof.

The Court also found that Seng could not meet the substantial evidence rule to support a grant of asylum or relief under the Convention Against Torture. The substantial evidence rule requires that the alien show that the evidence on the record would “compel a reasonable factfinder to make a contrary determination.” Seng’s reliance on country conditions reports did not create a record that rises to this standard.