                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2004

Rachid v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3613




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Rachid v. Atty Gen USA" (2004). 2004 Decisions. Paper 860.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/860


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                   No. 02-3613

                              BILAL RACHID,
                                    Petitioner

                                        v.

                         JOHN ASHCROFT,
              ATTORNEY GENERAL OF THE UNITED STATES

                 Appeal from the Board of Immigration Appeals
                            (BIA No. A77-027-869)

                         Argued: September 16, 2003

              Before: McKEE, SMITH, and COWEN, Circuit Judges.

                             (Filed: April 7, 2004)

TIMOTHY R. BLOCK, ESQ. (Argued)
LAURA ADJANGBA, ESQ.
Legal Services of New Jersey
100 Metroplex Drive, Suite 402
Edison, NJ 08818
Attorney for Appellant

ROBERT D. McCALLUM, JR., ESQ.
Assistant Attorney General
MARK C. WALTERS, ESQ.
Assistant Director
WILLIAM C. MINICK, ESQ.
TERRI J. SCADRON, ESQ.
MARY JANE CANDAUX (Argued)
Senior Litigation Counsel
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Attorneys for Appellees


                                         OPINION

McKEE, Circuit Judge.

       Bilal Rachid appeals the BIA’s decision affirming the denial of his applications for

asylum, withholding of removal and relief under the Convention Against Torture. For the

reasons that follow, we will affirm.

                                             I.

       Rachid arrived in this country on May 4, 1998 without any travel documents. He

claimed to be an Algerian national and he was seeking political asylum. App. at 169a. He

was immediately detained by the INS and interviewed. App. at 169a. During the

interview, he stated that he fled Algeria because he was afraid he would be killed after his

brothers were killed in the middle of the night by government soldiers. App.at 172a, 174a.

The INS interviewed Rachid again on May 15. App. at 162a-67a. During the second

interview, Rachid again stated that he was afraid to go back to Algeria due to the civil

war there and his brothers’ shooting. App. at 169a. He also responded “no” to questions

about whether he had ever been threatened, arrested or detained; had encountered

problems with the police or military; or was ever mistreated, abused or tortured. App. at

164a-65a. His case was then referred for a hearing to see if he qualified for asylum under




                                             2
8 U.S.C. § 1158.1 App. at 167a-68a.

       On May 28, Rachid appeared pro se at his asylum hearing and withdrew his

asylum application. App. at 152a-53a. In September, he attempted to reinstate his asylum

application by submitting a written asylum application. App. at 150a. The attempt met

with no success. However, a year and a half later, his asylum application was reinstated

with the help of counsel, and Rachid submitted a second written asylum application. App.

at 133a-34a, 138a-39a. In that petition, he stated for the first time that the Algerian police

had accused him of belonging to the Islamic Salvation Front (“FIS”); that the police had

arrested him three times; and that they had jailed, beat, starved and tortured him for days

following his arrest. App. at 133a-34a. He requested asylum, withholding of removal, or

withholding of removal and relief under the United Nations Convention Against Torture

(“CAT”). App. at 3a.

       Rachid had his second hearing before an IJ in July 2001. App. at 36a. At the

hearing, Rachid testified that the Algerian military police arrested him three times in




       1
        8 U.S.C. § 1158(b)(1) (2004) states that IJs should grant applicants asylum as a
matter of discretion based on whether the applicant proves he/she meets the definition of
“refugee” under 8 U.S.C. § 1101(a)(42)(A) (2004). See Abdille v. Ashcroft, 242 F.3d 477,
482 (3d Cir. 2001).
       Section 1101(a)(42)(A) defines a refugee as:
              any person who is outside any country of such person’s nationality. . . who
              is unable or unwilling to avail himself or herself of the protection of that
              country because of persecution or a well-founded fear of persecution on
              account of race, religion, nationality, membership in a particular social
              group, or political opinion. . . .

                                              3
February, June and August 1995, and that the police beat and tortured him using electric

shocks while he was detained. App. at 46a-57a. He also testified that the police

interrogated him regarding his connections with FIS the first and third times he was

arrested. App. at 49a, 56a. Rachid claimed that he did not tell his entire story during his

first two INS interviews because he was frightened, and that he did not trust the person

who helped him complete his first written asylum application enough to tell that person

about his arrests and torture. App. at 66a, 77a-78a, 81a-82a. He also submitted the

affidavit of a doctor who examined him, David S. Kang, M.D., which stated that his scars

were clearly indicative of torture. App. at 107a-10a.

       The IJ denied Rachid any relief. He denied Rachid asylum because he found that

Rachid’s testimony regarding his arrests and torture was unbelievable. R. at 18a. He

found Rachid’s excuses for his failure to mention these things during his first two

interviews and in his first written asylum application were implausible, concluding that

“at some point [Rachid] decided to embellish his story, particularly the arrests. What we

have is, in my opinion, a recent fabrication of a story.” R. at 17a. The IJ then found that

Rachid’s consistent story about his brothers being killed did not make out his asylum

claim, either. App. at 17a-18a. He also refused to grant Rachid withholding of removal,

stating that withholding required Rachid to meet a higher standard of proof than granting

asylum did. R. at 18a-19a.

       The Board of Immigration Appeals (BIA) affirmed the IJ’s decision. It agreed



                                              4
with the IJ that “contradictions, addressed in detail in his decision, were not resolved by

the applicant, either during the proceedings or on appeal.” R. at 2a. Rachid timely filed

this petition, requesting review of the BIA’s decision to affirm the order of removal

against him.

                                              II.

       Rachid raises three arguments before this court. 2 First, he argues that the IJ should

not have found his later story about being arrested and tortured unbelievable because this

Court has recognized that an alien’s fear can explain differences between the story the

alien tells upon arrival and the story he/she tells later. Second, he argues that the IJ

should have accounted for the medical evidence of his torture when the IJ analyzed his

asylum claim. Finally, he argues that the IJ should have granted his petitions for

withholding of removal generally or withholding of removal under the Convention

Against Torture (CAT). We address these issues seriatim.

                                              A.



       2
         We have the authority to review the BIA’s decision to affirm an order of removal
under 8 U.S.C. § 1252(b) (2004). Because the BIA adopted the IJ’s decision, we review
the IJ’s administrative findings of fact for substantial evidence. See Abdulai v. Ashcroft,
239 F.3d 542, 549 n.2 (3d Cir. 2001). Such review requires us to treat the IJ’s findings as
“conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d
Cir. 2003) (internal citation omitted). However, even under this deferential standard of
review, an IJ must offer “specific, cogent reasons for his or her disbelief” when rejecting
a witness’s positive testimony because in his or her judgment it lacks credibility in order
for his/her rejection of such testimony to be supported by substantial evidence.
Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) (internal citation omitted).

                                               5
       Rachid states that the IJ erred in making an adverse credibility determination

against him due to his failure to mention his arrests and torture in his first two INS

interviews and in his first written asylum application. He argues that this was error

because Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998), holds that inconsistencies

between the story an alien initially tells and the story he/she tells later is not enough to

discount the alien’s testimony.

       We disagree. Upon his arrival in the U.S., Balasubramanrim was immediately

detained and interviewed in English, a language in which he did not have good

competency. During the interview, he was asked whether he had been arrested or tortured

and responded only that his brother had been arrested. He subsequently described

mistreatment at the hands of his home country’s government and a rebel group within the

country in a written asylum application, and testified to the same matters in his first

hearing in front of an immigration judge. Id. at 158-60. The IJ denied Balasubramanrim’s

application, finding the petitioner’s later statements unbelievable because he had told the

officers at the airport that he had never been arrested. Id. at 160. The BIA affirmed. Id. at

161.

       Subsequently, this Court found that the IJ and BIA placed undue reliance on the

airport interview. Id. at 162. We stated that an arriving alien who has suffered abuse

during interrogation by government officials in his home country may be reluctant to

reveal such information during the first meeting with government officials in this country.



                                               6
Id. at 163. We then held that “some inconsistencies between the airport statement and

[the petitioner’s] testimony before the immigration judge [were] not sufficient, standing

alone, to support the Board’s finding that [the petitioner] was not credible.” Id. at 164.

       It is clear that there were more than just a few inconsistencies between the airport

statement and the petitioner’s testimony in the case at hand, though, giving the IJ

appropriate grounds to distinguish Rachid’s situation from Balasubramanrim.3 The IJ’s

decision notes that, unlike Balasubramanrim, Rachid repeated that he had not been

arrested or tortured in response to direct questions in a lengthier interview 10 days after

the initial airport interview and in his first written asylum application submitted several

months after the initial interview. He also notes that the cases can be distinguished

because Rachid’s airport interview was conducted in a language, French, in which

Rachid’s competency is uncontested. These are significant differences between the two

cases that allowed the IJ to distinguish them and find that Rachid’s inconsistent testimony

was unbelievable. We will affirm the IJ’s rejection of Rachid’s testimony that he was

tortured and arrested.

                                               B.




       3
         The IJ does not actually name Balasubramanrim but states enough details about
the case that it is clear he is referring to it: “[T]his Court is mindful of the Sri Lanka case .
. . in which the 3rd Circuit. . . has advised Immigration Judge’s (sic) to be very careful
concerning airport, or in this case airport and seaport statements. . . .[T]hat case involved
a Sri Lankan where the statement was taken in English, not the language of the
respondent.” R. at 14a.

                                               7
       Rachid’s final argument is that the IJ’s decision should have addressed the medical

evidence because it establishes that he was tortured, and his torture establishes that he

was persecuted such that he is eligible for asylum.4

       The medical evidence at issue is the affidavit of David S. Kang, M.D., that Rachid

submitted to the IJ at his second hearing. In this affidavit, Dr. Kang concludes that

Rachid had been a victim of torture because Rachid’s explanations of scars and injuries

were consistent with his physical findings. The IJ’s decision refers to Dr. Kang’s

testimony once, stating that Rachid was “examined by a Dr. Khan (sic) who he spent an

hour and a half with and told him the story as to what happened to him in Algeria

concerning the arrests, the beating and the killing of his brothers and his flight into the

United States. The doctor’s report was admitted into evidence.” R. at 10a.

       This court has found that an affidavit reporting that an examination of an asylum

applicant indicated torture is “powerful evidence.” Obianuju Ezeagwuna v. Ashcroft, 301

F.3d 116, 132 (3d Cir. 2002). Even such important evidence can not help Rachid here,

however. The IJ’s decision not to grant asylum was based on his finding that the

petitioner’s later testimony/application was inconsistent with his earlier ones, and the

doctor’s opinion does not determine whether Rachid’s later allegations of torture at the

hands of government soldiers were true or false. Dr. Kang does not try to pinpoint when




       4
         We noted in Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993), that the BIA has
said that torture can establish the persecution necessary to receive asylum.

                                              8
in time the torture occurred or at whose hands it happened; his testimony leaves open the

possibility that Rachid was tortured this way but not under the circumstances he

described. Because the doctor’s affidavit does not compel a different conclusion than the

one the IJ reached, we can not overturn the IJ’s findings that the petitioner was ineligible

for asylum.

                                             C.

       Rachid also argues that the IJ should have found him eligible for withholding of

removal. He states that he meets the criteria for withholding of removal generally

because he has established that he suffered past persecution and will suffer future

persecution due to his political opinion, and for withholding of removal under CAT

because he established that he was tortured. He asked this Court to reverse the IJ’s

decision and enter an order prohibiting his removal.

       The IJ explains his decision to deny withholding of removal, albeit briefly. After

stating that Rachid was not eligible for asylum, he states:

              Since withholding of removal is a higher standard, I must deny that, as well.
              Since I do not believe his testimony concerning his arrests, the mere fact
              that he may have been in the cross fire, an innocent family in a civil war,
              does not lead me to believe that he would be tortured if he returned to
              Algeria. He has not convinced me that the government of Algeria or its
              agents would be interested in him since I have not found him credible. I
              will deny that application as well.

R. at 18a-19a. In summary, the IJ denies withholding of removal because he finds that

Rachid can not be eligible for such relief if Rachid could not meet the lower standard for



                                              9
asylum eligibility.

       We agree with the ALJ that Rachid could not meet the standards for withholding

of removal or CAT relief if he did not meet the criteria for asylum. To be granted asylum,

a petitioner must prove only that he/she has a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1158. Such a fear of persecution can be well-founded even when there is less

than a 50 percent chance of the occurrence taking place. Lin v. INS, 238 F.3d 239, 244

(3d Cir. 2001). But he must prove that he faces a “clear probability of harm” upon return

to his home country to qualify for withholding of deportation, Chang v. INS, 119 F.3d

1055, 1065-66 (3d Cir. 1997); this standard requires him to establish at least a 51 percent

chance of harm. Similarly, the standard to establish eligibility for CAT relief requires

Rachid to prove by a preponderance of the evidence that he would be subject to torture

upon return to his home country. 8 C.F.R. § 208.16(c) (2004). Because it is more difficult

to establish eligibility for withholding of removal generally and CAT relief than to

establish eligibility for asylum, no one ineligible for asylum could possibly be eligible for

withholding of removal under either test.

                                             IV.

       For the above reasons, we will affirm the district court.




                                              10
