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Soumare v. Mukasey

May 8, 2008

OUMAR SOUMARE, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A97-119-672.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED FEBRUARY 26, 2008

Before KANNE, SYKES, and TINDER,Circuit Judges.

Oumar Soumare, a native and citizen of Guinea, petitions for review of a final order of removal issued by an Immigration Judge (IJ) and affirmed by the Board of Immigration Appeals (BIA). The IJ denied Soumare's application for asylum and withholding of removal after determining that Soumare had not met his burden of proof through credible testimony or corroborating evidence. Because the record supports the IJ's adverse credibility determination and his decision to require corroboration, we deny Soumare's petition.

I. HISTORY

Soumare entered the United States in March 2003 at Miami, Florida. In July 2003, Soumare, who was not yet in immigration proceedings, filed an application for asylum and withholding of removal based on his political opinion. In this first application, Soumare stated that in 1998 he was "harmed and mistreated" by members of the Guinean ruling party because of his political activities. Specifically, Soumare claimed that he and his family had been "arrested[,] interrogated, convicted and sentenced" for financing rebels, though they had not had done so.

In response to the application, an asylum officer interviewed Soumare, see 8 C.F.R. § 1208.9, and after determining that Soumare was inadmissible, referred his application to the Executive Office of Immigration Review, see id. § 1208.14(c)(1). As a result, Soumare received a notice to appear in September 2003, see id. § 1208.19, which initiated removal proceedings against him because he was present in the United States without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i).

During his immigration proceedings, Soumare conceded that he was removable as charged in the notice to appear, and in May 2004, Soumare, with the assistance of his attorney, filed a new application for asylum and withholding of removal. In this second application, Soumare claimed eligibility for asylum based on his political opinion, nationality, and membership in the Rally for the Guinean People ("RPG"), the main democratic opposition political party in Guinea. Soumare's application did not identify RPG by its full name; rather, he identified it only by the initials, "RPG."

Soumare appended to his second asylum application a type-written statement that elaborated the alleged mistreatment he suffered at the hands of the ruling Guinean authorities. The statement alleged that (1) in 1996, supporters of the ruling party "looted and destroyed" Soumare's father's stores; (2) in 1998, his brother, who managed the family businesses, was taken from the family home and then detained, interrogated, and beaten for one month, on the suspicion that the family financed rebels with proceeds from their businesses-his brother then fled to Senegal; (3) soon after the incident with his brother, government officials arrested Soumare in the middle of the night, and he too was detained, interrogated, and beaten for one week thereafter; and (4) in November 2001, Soumare was again arrested for supporting RPG, and he was held until February 2003-during this fifteen-month span Soumare was "severely beaten and tortured" in prison in Conakry. Soumare did not submit any other supporting documents with his asylum applications.

In early December 2004, Soumare testified (through an interpreter) before the IJ. At the outset, Soumare attested that his asylum applications were complete and accurate, and he and his counsel declined the IJ's invitation to correct or supplement the applications. Soumare then testified about his asylum claim. He stated that he feared returning to Guinea because he and his entire family, including his father and brothers, were members of RPG. Soumare claimed that he attempted to recruit members for RPG on nights and weekends from 1995 to 2001, and in exchange, RPG promised him a "good position" in their new government once they took power. Soumare could not state how many hours he spent recruiting for RPG, or how many people he was able to recruit to the party. When asked by the IJ what RPG stood for, Soumare could not state the party's name-he first uncertainly called it the "Assembly or Reassembly, Popular of Guinea," then stated it was the "Assembly of the People of Guinea."

Soumare also testified about the alleged persecution that he and his family suffered as a result of their participation in RPG. Soumare explained that his family's businesses were looted and vandalized by government officials. But in his hearing testimony, Soumare initially claimed that the stores were vandalized in 1998, not in 1996 as he had written in his application. Soumare testified that he took over managing his father's businesses after his brother fled to Senegal in 1998, and Soumare stated that he closed the stores in 1998 to avoid further accusations that the profits were being used to finance rebels. The IJ attempted to clarify when the stores were looted by asking Soumare whether he was managing the stores when the looting occurred. However, this colloquy did not produce a coherent answer.

Soumare's testimony deviated from his written asylum applications in other respects. Despite Soumare's statement in his first asylum application that he had been "harmed and mistreated" because of his membership in RPG in 1998, and despite the statement in his second asylum application that he had been arrested, detained for one week, and beaten in 1998, Soumare testified at his hearing that only his brother was arrested in 1998; he stated that the government did not bother him until he was arrested in November 2001. Soumare reiterated, in response to several questions at his hearing, that he was arrested only once, on November 3, 2001, for allegedly financing rebels. When asked on cross-examination about the inconsistency between his hearing testimony and his asylum applications, Soumare did not stand by the written statements in his applications; rather, he stated that his applications must have been incorrectly transcribed where they indicated that he had been mistreated, arrested, and tortured in 1998. On cross-examination, the government also asked Soumare about the claim in his first asylum application that he and his family had been "arrested, interrogated, convicted, and sentenced" for financing rebels. In response, Soumare testified he was never convicted and that he "never went to court." He testified that he was never formally charged and never went before a judge.

During Soumare's testimony, Soumare's counsel tried to introduce an RPG membership card into evidence to corroborate Soumare's story. Soumare had not provided the card to his counsel until the date of the hearing. Consequently, the card had not been filed ten days prior to the hearing as required by the immigration court's local operating rules. See Sanchez v. Keisler, 505 F.3d 641, 645 (7th Cir. 2007). The IJ noted that the card had not been timely filed, see 8 C.F.R. § 1003.31(c), that the card had not been properly served upon the government prior to the hearing, see id. § 1003.32(a), and that the card was not in English and had not been translated by a certified translator, see id. § 1003.33. Because of these deficiencies, the IJ would not admit the card into the record. However, the IJ allowed Soumare to testify about the card.

After considering Soumare's testimony and asylum applications, as well as country reports on Guinea submitted by the government, the IJ issued a written decision in September 2005. The IJ noted that Soumare's hearing testimony was not "particularly specific or detailed." The IJ then acknowledged that Soumare ratified his asylum applications at the outset of his hearing, and "at least two significant discrepancies became apparent." First, Soumare testified to only one instance of physical mistreatment, in 2001, despite claiming in both of his asylum applications that he had also been mistreated in 1998; the IJ rejected Soumare's explanation that the applications had been improperly transcribed because Soumare's second asylum application was prepared with the assistance of his attorney, and "[n]o corrections were made at the outset or during the hearing." Second, Soumare testified that he had never been convicted-or even appeared in court-though his first asylum application stated that he and his family had been convicted for financing rebels. Soumare never explained this disparity between his hearing testimony and ...


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