the deportation order while this habeas petition is pending. "The execution of a deportation order before the final resolution of any (non-frivolous) challenges to the order would raise significant equitable, if not constitutional, concerns. Castaneda-Suarez, 993 F.2d at 145. (citations omitted).
It appears to the undersigned, that Ms. Nsukami may have a non-frivolous claim to present before the Board. While I had no opportunity to witness her at the hearing, it seems that an inaccurate translation may very well have affected the Immigration Judge's perception of her credibility.
In addition, the transcribed tapes were not received by petitioner's attorney until October 2, 1994 which was after the BIA decided Ms. Nsukami's appeal. To avoid the deportation of Ms. Nsukami prior to the final resolution of her case, it is the respectful recommendation of the undersigned that the stay of deportation be continued for sixty days until the petitioner files a motion to reopen. See Castaneda-Suarez, 993 F.2d at 146, citing Roque-Carranza, 778 F.2d at 1374 (The court granted a stay of deportation until the motion to reopen was addressed by the Board); Arango-Aradondo, 13 F.3d at 615 (Second Circuit proceeded with the review of the habeas petition except for the unexhausted ineffective assistance of counsel claim and granted the petitioner a sixty day stay of deportation to file his motion to reopen on the unexhausted claim). If the petitioner fails to file this petition within sixty days of the adoption of this report and recommendation, then the stay should end. If the petitioner moves to reopen within this period, the stay should continue until the Immigration and Naturalization Service has completed any proceedings regarding Ms. Nsukami.
C. MERITS OF THE PETITION:
Since we find that any claims regarding the incorrect translation is not properly before this court due to the petitioner's failure to administratively exhaust her claims; the issues properly before this court for review are whether the decision denying petitioner's applications were supported by substantial evidence, did the Immigration Judge deny the petitioner due process by questioning her directly on matters relating to her asylum application and whether the Immigration Judge and BIA applied an erroneous standard in evaluating petitioner's application.
Decisions of the BIA and Immigration Judge were based on Substantial Evidence:
In an appeal from a decision of the BIA, the BIA's conclusions of law are reviewed de novo, while factual findings are granted significant deference. Therefore the BIA's factual findings must be upheld if "supported by reasonable, substantial and probative evidence on the record considered as a whole" Immigration Naturalization Service v. Elias-Zacarias, 502 U.S. 478, 482, 117 L. Ed. 2d 38, 112 S. Ct. 812 (1992), citing 8 U.S.C. § 1105a(a)(4) (1970).
The petitioner argues that the decisions of the Immigration Judge and BIA were not based on substantial evidence. She asserts that her testimony was consistent and that the judge based his determination on what was not corroborated rather than the weight of the testimony itself.
An applicant for asylum has the burden of proving that he or she meets the definition of refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). § 1101(a)(42)(A) defines refugee as
any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Ms. Nsukami claims that she has established a well-founded fear of persecution if she returns to Zaire. To illustrate a well-founded fear of persecution, applicants "must demonstrate a subjective fear of persecution and some objective facts supporting that fear." Rasool v. Immigration Naturalization Service, 758 F. Supp. 188, 191, (S.D.N.Y. 1991), citing Brice v. U.S. Dept. of Justice, 806 F.2d 415, 418 (2d Cir. 1986); Carcamo-Flores v. Immigration Naturalization Service, 805 F.2d 60, 64 (2d Cir. 1986). In evaluating whether the applicant has sustained her burden of proving that she has a well-founded fear of persecution, she must first establish that she has a fear of persecution in Zaire, second, that there is a reasonable possibility of actually suffering such persecution if she returns to Zaire, and third, that she is unable or unwilling to return to or avail herself of the protection of Zaire because of such fear. See 8 C.F.R. § 208.13(b)(2). To prove a reasonable possibility of persecution, petitioner may establish that there is a pattern or practice in her country of persecution of groups of persons similarly situated to her on account of race, religion, nationality, membership in a particular social group or political opinion, and that petitioner is a member of such a group. See 8 C.F.R. § 208.13(2)(i)(A)(B). Once the applicant establishes eligibility for asylum, a grant of asylum remains within the Attorney General's discretion. Osorio v. Immigration Naturalization Service, 18 F.3d 1017, 1021 (2d Cir. 1994).
The BIA adopted Judge Cohen's finding that the petitioner's testimony was not credible. Credibility findings of the BIA and the Immigration Judge are reviewed to determine if they are supported by substantial evidence. Vilorio-Lopez v. Immigration Naturalization Service, 852 F.2d 1137, 1141 (9th Cir. 1988). Reversal of a BIA decision is warranted only where the evidence "presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. Elias-Zacarias, 502 U.S. at 483-484.
It is my opinion that a reasonable factfinder could find that petitioner lacked a well-founded fear of political persecution. The Immigration Judge found that the petitioner's testimony was ". . . incredulous [sic], inconsistent and contradictory . . .," thus finding the petitioner has not established a well-founded fear of persecution. See IJ, p. 3. In his decision, Judge Cohen based his adverse credibility determination on several grounds. He pointed to the fact that the petitioner did not know what the letters of her father's political party stood for, that petitioner's political organization did not have a name, petitioner did not satisfactorily explain why she didn't seek refuge in Congo or Belgium, and she did not introduce any corroborating evidence concerning her or her father's involvement in political opposition parties in Zaire. In addition, the Judge found the story of the petitioner's escape from the prison hospital unbelievable. Ms. Nsukami did not explain how her father's friend, Paul Mukuya, knew she was going to the hospital on that day, nor how or if he was in touch with the petitioner's father who was allegedly incarcerated, how he managed to arrange her release. The BIA concluded that Judge Cohen's findings were supported by the record and that there was nothing in the record to disturb Judge Cohen's conclusions concerning the applicant's lack of credibility. See Appeal. P. 5.
The Immigration Judge's credibility findings on petitions for asylum are given substantial deference by the reviewing court, but must be supported by specific, cogent reason for the disbelief. See Berroteran-Melendez v. Immigration Naturalization Service, 955 F.2d 1251, 1256 (9th Cir. 1992); Ghasemimehr v. Immigration Naturalization Service, 7 F.3d 1389 (8th Cir. 1993); and Estrada v. Immigration Naturalization Service, 775 F.2d 1018, 1021 (9th Cir. 1985)(The Immigration Judge's determinations are given a great deal of weight because the Judge is in the best position to evaluate the applicant's testimony).
Judge Cohen pointed to specific, cogent reasons for finding that the testimony of Ms. Nsukami lacks credibility. Compare Vilorio-Lopez, 852 F.2d at 1142 and Chen v. Slattery, 862 F. Supp. 814 (E.D.N.Y. 1994) (Minor inconsistencies in the record that reveal nothing as to the substance of the alien's fear his or her safety are not an adequate basis for finding the applicant's testimony incredible). Judge Cohen's finding that the petitioner was not credible was supported by substantial evidence. The record supports this finding because the petitioner claims she was being persecuted and would be subject to future persecution based on her strong political views, however the record established that she did not know what the initials of her father's political party stood for and her own political organization did not have a formal name. In addition, the Judge found her story to be incredible and unbelievable, particularly in connection with the details pertaining to her escape from prison. Compare Nasseri v. Moschorak, 34 F.3d 723, 725-726 (9th Cir. 1994)(The Court of Appeals held that the Board's adverse credibility finding was based on "faulty logic," because the Board based its finding on the fact that the political situation did not seem plausible, although the Immigration Judge found that petitioner testified in an honest and forthright manner. In addition, the petitioner supplied the Board with corroborating evidence about her opposition to the communist regime). I find that the reasons stated by the Immigration Judge were valid grounds for determining the petitioner was not credible. See Nasseri, 34 F.3d at 726. Therefore, it is my respectful recommendation that the Court find that the BIA properly affirmed the Immigration Judge's finding that petitioner failed to meet her burden of demonstrating a well-founded fear of persecution as required for political asylum.
Withholding of Deportation:
The Attorney General must withhold deporting an alien who demonstrates that if deported his or her "life or freedom would be threatened in such country on account of race, religion, membership in a particular social group, or political opinion. 8 U.S.C. § 1253(h) (1970 & Supp. 1995). See Osorio, 18 F.3d at 1021 (withholding of deportation is mandatory for those who qualify). An alien must show a clear possibility of persecution to meet the standard for withholding of deportation. Thus, the petitioner must establish that it is more likely than not that the applicant will be persecuted upon return to a particular country. Melendez v. U.S. Dept. of Justice, 926 F.2d 211, 215 (2d Cir. 1991); Immigration Naturalization Service v. Stevic, 467 U.S. 407, 413, 81 L. Ed. 2d 321, 104 S. Ct. 2489 (1984).
The petitioner failed to demonstrate a well-founded fear of persecution required for asylum, therefore it is the respectful recommendation of the undersigned that this Court does not need to address whether Ms. Nsukami would meet the more stringent standard of a clear probability of persecution required for withholding of deportation. See Immigration Naturalization Service v. Stevic, 467 U.S. 407, 81 L. Ed. 2d 321, 104 S. Ct. 2489 (1984).
Corroboration of Petitioner's Testimony:
The petitioner asserts that her own testimony, if credible in light of the general conditions in Zaire may be sufficient to sustain the burden of proof without corroboration. See 8 C.F.R. §§ 208.13(a), 208.16(b). The petitioner claims that she did not have to corroborate the testimony which she gave in support of her asylum application. She argues that she was held to an unfair burden of proof by being expected to produce extensive documentation in support of her asylum claim.
It is well-established that the lack of corroborating evidence is not fatal to an application for asylum. The alien's testimony will be enough "'if it is credible, persuasive, and refers to 'specific facts that give rise to an inference that the application has been or has good reason to fear that he or she will be singled out for persecution."" Melendez, 926 F.2d at 215, quoting Del Valle v. Immigration Naturalization Service, 776 F.2d 1407, 1411 (9th Cir. 1985), quoting Cardoza-Fonseca v. Immigration Naturalization Service, 767 F.2d 1448, 1453 (9th Cir. 1985), aff'd, 480 U.S. 421, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987). The Second Circuit has noted that credible testimony by the alien might suffice especially where conditions in the alien's native country makes production of documentary evidence difficult or impossible. Carcamo-Flores, 257 U.S. App. D.C. 169, 808 F.2d 64 at 64.
The Government argues that where an applicant has presented no supporting evidence other than her own testimony, this testimony must be found at least credible in order to obtain the desired relief. The Government points to the Immigration Judge's finding that petitioner's testimony was "incredulous, inconsistent and contradictory." In making this finding, Judge Cohen relied upon inconsistencies in petitioner's testimony in combination with the overall lack of corroboration.
The BIA stated correctly in its opinion that lack of corroborative evidence is not fatal to an application. In fact the BIA held that they recognize the difficulty that aliens may face in obtaining documentary or other corroborative evidence to support their claim of persecution and that an alien's own testimony may in some cases be the only evidence available. See Appeal, p.4. The applicant's testimony may suffice to establish his or her fear if the testimony is believable, consistent and sufficiently detailed to provide a plausible and coherent account of the basis of his alleged fear. The BIA concluded that Ms. Nsukami did not meet this standard.
Since Ms. Nsukami's testimony was found not to be credible and this finding has been supported by substantial evidence, her testimony is not enough to meet the burden of establishing a well-founded fear of persecution to establish asylum or the higher standard to justify withholding of deportation. The BIA articulated the correct standard under Second Circuit precedent concerning corroboration of testimony, thus, it is my respectful recommendation that the Court find that there was no error in the standard applied by the BIA.
Due Process Violation:
The petitioner contends that her fifth amendment due process right to present evidence before an impartial trier of fact was denied when the Immigration Judge questioned Ms. Nsukami directly on many matters relating to the asylum application and her credibility as to statements she made.
An immigration judge may ". . . interrogate, examine, and cross-examine the alien or witnesses . . . ." 8 U.S.C. § 1252(b) (1970 & Supp. 1995). Procedural due process is violated when the actions of the government substantially prejudice the protesting party. Calderon-Ontiveros v. Immigration Naturalization Service, 809 F.2d 1050, 1052 (5th Cir. 1986)(citations omitted). In Calderon-Ontiveros, the petitioner claimed that the immigration judge's vigorous questioning substantially prejudiced his case. The court held that the judge's questions did not deny the petitioner a meaningful and fair hearing. Id. Further, the questions asked by the Judge were not designed to trick the petitioner nor did the questioning result in an incorrect resolution of this case. Id.
In the instant case, Judge Cohen did not exceed his statutory authorization granted in 8 U.S.C. § 1252(b). He questioned the petitioner throughout the hearing on the claims she was raising, however he is allowed to interrogate and examine witnesses at the hearing. He did not attempt to trick the petitioner with his questions, nor did his questions substantially prejudice the petitioner, thus the petitioner's due process rights were not violated. Compare Walberg v. Israel, 766 F.2d 1071, 1073 (7th Cir. 1985), cert. denied, 474 U.S. 1013, 88 L. Ed. 2d 475, 106 S. Ct. 546 (1985)(The judge denied the defendant a fair trial when he answered questions posed to the defendant before the defendant could answer and criticized a prosecution witness who testified favorably for the defense).
For the reasons set forth above it is the respectful recommendation of the undersigned that Ms. Nsukami's petition for habeas corpus be denied. Based on the record presented to the Immigration Judge and the BIA, their decisions were supported by substantial evidence. Any claims based on inaccurate or incorrect translation may not be addressed by this court because these claims were not properly exhausted. The petitioner may move to reopen the proceedings to fully exhaust these claims pertaining to inaccurate translation within sixty days from the date of the adoption by the Court of this Report and Recommendation. If the petitioner fails to file her motion to reopen this time frame then the stay of deportation should end. Any objections to the recommendations contained herein must be filed with the Honorable Edward R. Korman on or before May 10, 1995. 28 U.S.C. § 636; Fed. R. Civ. P. 6, 72. Failure to object will preclude appellate review.
Dated: Brooklyn, New York
April 26, 1995
A. SIMON CHREIN
United States Magistrate Judge