                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-2-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3449




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                                                      NOT PRECEDENTIAL


                 IN THE UNITED STATES COURT
                          OF APPEALS
                     FOR THE THIRD CIRCUIT


                            NO. 04-3449


       PATRICK GITAU MWANGI & riders; LEAH MWANGI;
        ANNCILETA GITAU; KEVIN GITAU; IVINE GITAU,
                        Petitioners

                                  v.

        ATTORNEY GENERAL OF THE UNITED STATES;
          DEPARTMENT OF HOMELAND SECURITY;
        U.S. CITIZENSHIP & IMMIGRATION SERVICES,
                         Respondents


On Petition for Review of an Order of the Board Of Immigration Appeals
                           No. A78-498-102


           Submitted Pursuant to Third Circuit LAR 34.1(a)
                          October 19, 2005

  BEFORE: SMITH, STAPLETON and NYGAARD, Circuit Judges

                  (Opinion Filed November 2, 2005)




                     OPINION OF THE COURT
STAPLETON, Circuit Judge:


       Petitioners Patrick Gitau Mwangi (“Mwangi”), his wife, Leah, and three children,

Annicileta Gitau, Kevin Gitau, and Ivine Gitua 1 petition for review of a decision of the

Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ’s”)

decision denying their applications for asylum, withholding of removal, and protection

pursuant to the Convention Against Torture (“CAT”),2 as well as finding those

applications to be frivolously filed. Mwangi and his family are natives and citizens of

Kenya.

       The IJ’s primary basis for denying Mwangi’s application and for finding it to be

frivolous was an adverse credibility determination. The IJ did not believe Mwangi’s

testimony regarding his past persecution in Kenya or his fear of future persecution. In

reviewing that determination, we start by reviewing Mwangi’s testimony from the merits

hearing.

       Mwangi testified that he had been involved in politics since the early 1980s. He

testified that he had been the Organizing Secretary for the Democratic Party (“DP”), an



   1
    The cases of Mwangi’s family members have all either been consolidated with or are
derivative of Mwangi’s application. As the parties have done, we will refer only to
Mwangi as the petitioner.
   2
    United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United
States by the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277,
§ 2242, 112 Stat. 2681-761 (codified at 8 U.S.C. § 1231).

                                             2
opposition political party. Mwangi first testified that he joined the DP in 1979, but later

stated that he joined in 1997.

        On cross-examination, Mwangi testified that he joined the Forum for the

Restoration of Democracy (“FORD”) in the 1980s. He then testified that FORD was

formed in either 1989 or 1990 and that he joined it in 1991. He later stated that he joined

FORD in 1992, and then that he was unsure of the date and that it was between 1991 and

1992.

        Mwangi testified to a number of incidents of alleged persecution. When walking

home from school in 1982 on the day after a military coup, he was stopped by soldiers.

The soldiers emptied his luggage and searched its contents. In 1990, he and his brother

were arrested by “special branch people” for “[g]etting involved in politics.” A.R. at 164.

He was generally “roughly handled” by the police, but released the following day. Id. at

167. The police later pressured Mwangi’s employer to fire him and Mwangi was fired as

a result. The bank reinstated Mwangi three months later with back pay and transferred

him to Nairobi.

        Mwangi further testified that he “used to get beaten very often” when he was

campaigning for a friend in 1992. Id. at 160. He was beaten by “K[ANU] Youth

Wingers” and the police. Id. at 161. The Kenya Africa National Union (“KANU”) was




                                              3
the then-ruling political party in Kenya.3 Mwangi testified that at political gatherings they

“just start beating people for no good reason” and that “they had clubs, a very big club.”

Id. at 162.

       Mwangi testified that in 1995 on a trip from Nairobi to Nakuru he was arrested by

KANU “youth wingers.” Id. at 172-73. They searched his luggage and detained him

until the following day.

       Mwangi testified that in 1997 he arranged transportation for a friend running for

elective office. He testified that he and others were arrested, detained for two days,

interrogated, ordered to stop campaigning, and kicked and beaten. Mwangi testified that

he lost a tooth as a result.

       On Mwangi’s final trip to Kenya, according to his testimony, he was visiting his

brother when his brother’s house was attacked and burned down. Mwangi testified that

from talking to others he learned that this was done by KANU supporters. The following

day his own home was destroyed, along with a total of 25-30 homes in his neighborhood.

       Finally, Mwangi testified that the KANU government and its supporters have been

responsible for the murder or rape of a number of his extended family members. In

addition, Mwangi testified that his father’s business was bulldozed by government

workers with police protection.




   3
   We take judicial notice that the KANU party is no longer the governing party in
Kenya.

                                             4
       Mwangi first entered the United States in July 1999. He testified, “I was escaping

the persecution and I was attending a wedding of my. . . brother-in-law.” Id. at 201.

Mwangi’s two daughters accompanied him to the United States.

       According to Mwangi, his wife was “constantly harassed” while he was in the

United States. Id. at 222. “[T]he K[ANU] youth wingers used very often to come over at

night, force her to open the door, force her on the floor.” Id. His wife had told him about

this harassment before October 1999.

       Mwangi sent his daughters back to Kenya in October 1999. He testified that “[i]t

was safe for them [to return to Kenya], but not yet for” him. Id. at 218. He testified that

he felt comfortable sending his children back to Kenya despite his knowledge of his

wife’s harassment because “[t]hey usually don’t harm children.” Id. at 225.

       Mwangi returned to Kenya in January 2000. When asked why he returned home

despite having previously fled to avoid persecution, he responded:

       I felt very strongly for my wife who had just delivered our son, and they
       were in constant harassment from the. . . youth wingers, and I felt they
       needed my reassurance. And, and as I was trying to get them documents to
       be able to, to leave the country, too. . . .

Id. at 201-02.

       Upon his return, according to his testimony, Mwangi remained fearful of

persecution. When he left his home he disguised himself by “getting dressed like a

woman, putting on religious. . . clothes.” Id. at 203. Upon further questioning, he

testified that he disguised himself only “[a] couple of times.” Id. at 204. He insisted,

                                             5
however, that

       it reached a point that even my friends were telling me now. . . you’re
       putting us in danger trying to accommodate you, and you have an option
       where you can go and stay safely. . . so I had to leave. And by then I had
       not been able to get traveling documents for my wife.

Id. at 205.

       Mwangi returned to the United States, alone, in March 2000. Mwangi testified

that despite being told by friends that “[p]eople are being arrested, arrested or being

killed,” id. at 206, and that his “uncle had just been killed and then the two daughters

raped,” id., he returned to Kenya in September 2000. He testified that he stayed in Kenya

for two weeks, “trying to get traveling documents for [his wife] but it was proven real

hard for to get them.” Id. at 207. He returned again to the United States later that month

because “it was not safe to stay back over there.” Id.

       Mwangi remained in the United States for six months. During that time, his wife

successfully obtained a passport and a visa, and she joined her husband in the United

States in January 2001. However, Mwangi testified that his children’s traveling papers

were with his own passport and so they could not travel to the United States with his wife.

       Mwangi returned to Kenya again in March 2001 “[t]o go and get my children out.”

Id. at 210. He returned to the United States three weeks later with his children. Upon his

arrival at the Philadelphia airport, he was interviewed by an immigration official.

Mwangi told the official that he was visiting his “sister-in-law who had had problems.”

Id. at 212. He testified that he did not tell the official that he feared persecution because

                                              6
he thought the answer he gave was “simpler.” Id. When officials told him they wanted to

return him to Kenya on the same flight he told them, “I have fear of going back home.”

Id. at 213.

       The INS placed Mwangi and his family in removal proceedings. They all

conceded removability, but sought asylum, withholding of removal, and protection under

the CAT. Following the merits hearing, the IJ issued a decision denying Mwangi’s

application for asylum, withholding of removal, CAT protection and voluntary departure,

and ordered Mwangi and his family returned to Kenya. The IJ concluded that Mwangi,

       fully cognizant of what transpires in Kenya, has fabricated his testimony to
       coincide with the political atmosphere in his country and has custom-made
       his testimony to fit in with the political situation in his country, to be
       afforded relief from this Court. The Court finds that the respondents have
       filed frivolous applications for asylum.

Id. at 72. The BIA affirmed the IJ’s decision without opinion.

                              A. Denial of the Applications

       When the BIA issues an affirmance without opinion, we review the IJ’s opinion.

Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004). We review the IJ’s findings of fact

for substantial evidence and ask whether a reasonable fact finder could make the finding

on the basis of the administrative record. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.

2003); see also 8 U.S.C. § 1252(b)(4)(B) (“the administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary”). An agency finding regarding credibility is a factual determination reviewed



                                             7
according to the substantial evidence standard, as is a finding regarding a “well-founded

fear of prosecution.” Dia, 353 F.3d at 249; Abdille v. Ashcroft, 242 F.3d 477, 483 (3d

Cir. 2001). An IJ must support her adverse credibility findings with specific, cogent,

reasons. Id.

       “[T]o be eligible for asylum in the United States as a refugee, an alien must

demonstrate ‘persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.’”

Abdille, 242 F.3d at 492 (quoting 8 U.S.C. § 1101(a)(42)(A)). “The well-founded fear

standard has a subjective and an objective component. The alien must show that ‘he has a

subjective fear of persecution that is supported by objective evidence that persecution is a

reasonable possibility.” Balasubramanrim v. I.N.S., 143 F.3d 157, 165 (3d Cir. 1998)

(citation omitted). Similarly, to be eligible for “withholding of removal” an alien must

demonstrate that it is “more likely than not” that he will be persecuted upon returning to

his home country. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987). The “more

likely than not” standard for withholding of removal is more stringent than the “well-

founded fear” standard required for asylum. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.

1991). “An alien’s credibility, by itself, may satisfy his burden, or doom his claim.” Dia

v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003).

       In making his adverse credibility determination, the IJ identified the following

inconsistencies and implausibilities in Mwangi’s testimony:



                                              8
•   Mwangi testified that he sent his two daughters back to Kenya in October 1999

    even though he testified that his wife had told him that she was being violently

    harassed and that it was unsafe for Mwangi to return.

•   Mwangi returned to Kenya four times even though he testified that he feared for

    his safety.

•   Mwangi failed to apply for asylum in the course of any of his previous three visits

    to the United States.

•   Mwangi changed his testimony regarding the year in which he joined the DP, first

    saying 1979 and later saying 1997.

•   Mwangi similarly had difficulty recalling the year he joined FORD.

•   Mwangi also had difficulty remembering the precise date when he was arrested

    and interrogated by the “youth wingers.”

•   Mwangi made no mention in his asylum application of the arrests and beatings he

    suffered at the hands of the police that he testified to during the hearing.

•   Mwangi failed to otherwise substantiate with evidence his assertions: 1) that the

    KANU party was responsible for the burning of Mwangi’s and his brother’s

    homes; 2) that members of the KANU party were responsible for the killing of

    Mwangi’s family and friends; and 3) that he was a member of any of the

    organizations in which he claimed membership.

    Mwangi argues in response that: 1) Mwangi was not required to provide specific



                                           9
documentary evidence that the threats and violence came at the hands of the ruling

political party and its supporters; 2) Mwangi’s error in misstating the date he joined DP is

not a sufficient basis for an adverse credibility finding; 3) Mwangi’s inability to

remember the precise date when he was arrested and interrogated by the youth wingers is

not an adequate basis for an adverse credibility finding; 4) the fact that Mwangi’s

testimony was not entirely consistent with his asylum application is not a sufficient basis

for an adverse credibility finding; and 5) Mwangi offered a plausible explanation for his

returns to Kenya in that he was afraid of overstaying his permissible time in the United

States and that he was seeking ways to arrange travel for his wife and children.

       The IJ identified “specific, cogent” reasons supported by the record for his adverse

credibility determination. Taken as a whole, a reasonable fact finder could conclude

based on those implausibilities and inconsistencies that Mwangi lacked credibility.

Consequently, Mwangi failed to carry his burden of showing past persecution or a well-

founded fear of future persecution.

                             B. The Finding of Frivolousness

       Mwangi also seeks review of the IJ’s finding that Mwangi filed a frivolous

application for asylum. Section 1158(d) of title 8 provides:

       If the Attorney General determines that an alien has knowingly made a
       frivolous application for asylum and the alien has received the notice under
       paragraph (4)(A), the alien shall be permanently ineligible for any benefits
       under this chapter. . . .

8 U.S.C. § 1158(d). Because of the “severe consequences” that attach to a frivolousness

                                             10
finding, Muhanna v. Gonzales, 399 F.3d 582, 588 (3d Cir. 2005), the implementing

regulations require that an IJ “specifically find[] that the alien knowingly filed a frivolous

asylum application” in order for the provisions of § 1158(d) to apply. 8 C.F.R. § 208.20.

“[A]n asylum application is frivolous if any of its material elements is deliberately

fabricated.” Id. An adverse credibility determination alone, however, is not sufficient to

support a finding of frivolousness. As this Court explained in Muhanna:

       [U]nder 8 C.F.R. § 208.20 a finding of frivolousness does not flow
       automatically from an adverse credibility determination. . . .
       Inconsistencies between testimony and an asylum application, while
       certainly relevant to a credibility determination that may result in the denial
       of an applicant’s asylum claim, do not equate to a frivolousness finding
       under Section 1158(d)(6), which carries with it much greater consequences.
       It is because of those severe consequences that the regulation requires
       more: a finding of deliberate fabrication of a “material element” of an
       application, plus an opportunity for the alien to account for inconsistencies.

399 F.3d at 589. We refused to accept a frivolousness finding in Muhanna based in part

on the fact that it was “based not on a thorough examination of the [asylum] application

but instead on [the IJ’s] assessment of Muhanna’s credibility” when testifying.

       Here, the IJ did not “specifically find[]” that Mwangi “knowingly filed a frivolous

asylum application.” 8 C.F.R. 208.20. The relevant findings of the IJ were as follows:

              The Court doubts that any of the respondents’ testimony concerning
       problems in Kenya is true. The Court believes that the respondents have
       fabricated their testimony in order to obtain a benefit from this Court. It is
       doubtless from the State Department reports that politics in Kenya is, at
       times, tumultuous and that the government of Kenya does harass opposition
       candidates and opposition political parties. The Court believes that the
       respondent, fully cognizant of what transpires in Kenya, has fabricated his
       testimony to coincide with the political atmosphere in his country and has

                                             11
       custom-made his testimony to fit in with the political situation in his
       country, to be afforded relief from this Court. The Court finds that the
       respondents have filed frivolous applications for asylum.

App. at 72.

       The IJ clearly did not believe much of Mwangi’s testimony regarding his past

persecution and fear of future persecution, but the IJ failed to identify which, if any, of

the material elements of Mwangi’s asylum application Mwangi deliberately fabricated.

Specifically, the IJ did not find that at the time Mwangi filed his application for asylum,

Mwangi knew that a material aspect of his claim was fabricated. Because the IJ failed to

comply with the requirements of 8 U.S.C. § 1158(d) and 8 C.F.R. § 208.20, we must

conclude that substantial evidence does not support the frivolousness finding.

                                       C. Conclusion

       We will grant the petition for review with respect to the finding of “frivolous

applications” and will remand this matter to the BIA with instructions to vacate that

finding and, if the matter is to be pursued, to provide petitioners a full and fair hearing

with respect to specifically identified portions of the applications. We will deny the

petition in all other respects.




                                              12
