
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1714                                    JAARAH SALIFU,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                        ON PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            John J.  Loscocco and Barker,  Epstein and Loscocco  on brief  for            _________________     _____________________________        petitioner.            Ellen   Sue  Shapiro,   Senior  Litigation   Counsel,  Office   of            ____________________        Immigration Litigation,  Civil Division, Department  of Justice, Frank                                                                         _____        W.  Hunger, Assistant Attorney General, Civil Division, and Richard M.        __________                                                  __________        Evans, Assistant Director, on brief for respondent.        _____                                 ____________________                                  February 19, 1998                                                                                      ____________________                 Per Curiam.   Jaarah Salifu  appeals a  decision of  the                 __________            Board of Immigration Appeals,  which affirmed an  immigration            judge's denial of her petition for asylum  and withholding of            deportation.  8 U.S.C.    1158, 1253(h).  We affirm.                 Salifu, a native of Ghana, attempted to enter the United            States through John F. Kennedy Airport in New York on July 1,            1993.  The Immigration and Naturalization Service paroled her            into the United  States and began exclusion  proceedings.  At            an exclusion  hearing on  November 9,  1993, Salifu  conceded            excludability but  petitioned for  asylum and withholding  of            deportation, alleging that she feared persecution in Ghana on            the basis  of her political opinion.  Evidentiary hearings on            the petition were held  before an immigration judge  on March            30 and August 25, 1994.                   Salifu's asylum affidavit states that she was a regional            organizing  secretary of  Ghana's New Patriotic  Party, which            opposed the ruling junta in  an election on November 3, 1992.            The  next   day,  Salifu  participated  in   a  demonstration            protesting fraud  in the  election.   The demonstrators  were            dispersed by  army  and police  officers,  and a  curfew  was            imposed on the area.  On November 6, police officers arrested            Salifu  at home  and  took  her to  a  police station.    The            affidavit states  that  she was  held  for about  two  weeks,            during which  time she was  raped twice.  Salifu  claims that            the  officers told  her she  was  being held  because of  her            participation in the demonstration.                   Salifu's affidavit states that a police officer told her            that she would  be transferred to Accra, Ghana's capital, and            that many prisoners sent there  never returned.  The  officer                                         -3-                                         -3-            agreed to help  Salifu escape and took her  home.  Her mother            suggested that  she go  to stay  with her  grandmother, which            Salifu did.                   After  three months  with  her grandmother,  Salifu said            that she  decided to contact a  friend in Accra.   The friend            took  Salifu in  and promised  to  help her  escape from  the            country.   The friend obtained  a passport for Salifu  in the            name of  Marian Bigelow and  an airline ticket to  the United            States.  The friend also gave her an envelope containing some            photographs.    During  the  flight,  Salifu   destroyed  the            passport, as her friend had instructed.                 Salifu was  detained by an INS official  upon arrival in            New  York.   The official  searched her  bag and  removed the            envelope, which contained not only the photographs but also a            handwritten  letter.   Salifu claims  she did  not  write the            letter, does not  recognize the handwriting, and  was unaware            that the  letter was  in her possession  until it  was found.            The letter narrates the  experience of a New  Patriotic Party            activist who  was  raped; the  details  are similar  in  some            respects, but  not in others,  to Salifu's statements  in her            asylum affidavit.                   The  INS   official  then  interrogated  Salifu.     She            requested  an interpreter who spoke Twi, her native language,            but  no interpreter  was  available.    Salifu  attempted  to            converse  with the officer in English, although she maintains                                         -4-                                         -4-            her English was and remains very poor.  The INS officer wrote            Salifu's  answers out in affidavit form, which Salifu signed.            This  "airport affidavit" was  admitted into evidence  at the            hearing, as were the letter and photographs found in Salifu's            possession and  a memorandum that  the INS officer  wrote "to            file" after interviewing Salifu.                 The   immigration  judge   wrote   a  detailed   opinion            concluding  that Salifu's testimony  was not credible.   This            conclusion was based on  Salifu's demeanor on the  stand, her            inability   or  refusal  to   answer  simple  questions,  and            inconsistencies  between  her  live  testimony,  the  airport            affidavit, and  the affidavit filed in support  of her asylum            petition.   The immigration  judge concluded that  Salifu not            carried her  burden of proving  that she had  a "well-founded            fear of  persecution" on  account of  her political  opinion.            Alvarez-Flores v.  INS, 909 F.2d  1, 3  (1st Cir. 1990).   On            ______________     ___            appeal,  the  Board  of  Immigration  Appeals   affirmed  the            immigration judge's decision.                 Salifu's argument on  appeal comprises an attack  on the            factfinder's credibility assessments, which must be upheld as            long as  they are "reasonably grounded in  the record, viewed            as a whole."   Cordero-Trejo v.  INS, 40  F.3d 482, 487  (1st                           _____________     ___            Cir.  1994).   We think  that the  immigration judge  was not            clearly  erroneous in concluding  that Salifu's testimony was            not convincing.  As the  judge noted, there were  "sufficient                                         -5-                                         -5-            inconsistencies  in the  testimony,  asylum application,  and            affidavitalone to warrant a negative finding of credibility."                 Salifu argues that the Board violated the policy of  our            decision  in Cordero-Trejo  v.  INS, 40  F.3d  482 (1st  Cir.                         _____________      ___            1994).   In Cordero-Trejo, we  reversed a  denial of  asylum,                        _____________            noting  that  the  immigration  judge's  adverse  credibility            findings were not based on  "any perspectives offered by  the            unique  vantage  point  of the  factfinder,  such  as witness            demeanor, conflicting or confused testimony, etc., from which            credibility is typically assessed."  Id. at 491.  Rather, the                                                 ___            immigration   judge   in    Cordero-Trejo   discredited   the                                        _____________            petitioner's testimony with criticisms that we thought either            patently  unreasonable  or  directly refuted  by  documentary            evidence in the record.  Nothing like that occurred here.                 Salifu makes a  related legal argument that her own lack            of credibility does  not dispose of her claim that  she has a            well-founded fear  of  persecution.   Salifu quotes  language            from Cordero-Trejo to  the effect that an  asylum applicant's                 _____________            testimony must  be evaluated  in the  context of  documentary            evidence of the  political situation in the  applicant's home            country.   Salifu is right that such  information is relevant            to  determine whether a  petitioner's fear of  persecution is            objectively "well-founded."   But as a threshold  matter, the            asylum  petitioner  must   prove  that  she  has   an  actual            subjective  fear of persecution.  INS v. Cardoza-Fonseca, 480            __________                        ___    _______________                                         -6-                                         -6-            U.S. 421, 430-31 (1987).  The subjective element of an asylum            claim  must  be  "established  via the  applicant's  credible                                                                 ________            testimony that his fear is genuine."  Cordero-Trejo, 40  F.3d            _________                             _____________            at 491 (emphasis added).   In this regard a petitioner's lack            of credibility can be dispositive, as it is here.                 Salifu  argues  that  the  immigration  judge  erred  in            admitting   into   evidence   the  handwritten   letter   and            photographs seized  from her at  the airport, as well  as the            INS  officer's "memorandum to file."  Because the photographs            and memorandum do not appreciably strengthen the case against            Salifu, we believe their admission,  if at all erroneous, was            harmless.    Rodriguez-Hernandez v.  Miranda-Velez,  132 F.3d                         ___________________     _____________            848, 855 (1st Cir. 1998).                 The  handwritten letter, on the other hand, was damaging            to Salifu.  Salifu's sole objection below was that the letter            was irrelevant.  This objection is without merit.  The letter            tended  somewhat to  increase  the  chance  that  Salifu  was            "coached in her  story" before  leaving Ghana,  and that  the            story was  untrue in  material respects.   On appeal,  Salifu            asserts   that  there  was  no  foundation  for  the  letter,            specifically,  that there was  no independent proof  that the            letter offered was  the one found in her  possession and that            it had  not been  altered.  However,  this objection  was not            made at the time  the letter was offered into evidence, so it                                         -7-                                         -7-            is deemed waived.  United States v. Benavente-Gomez, 921 F.2d                               _____________    _______________            378, 385 (1st Cir. 1990).                 Salifu makes other  arguments regarding the  definitions            of  persecution and  political opinion.    Because the  Board            correctly   affirmed  the   immigration  judge's   conclusion            regarding credibility,  we do  not reach Salifu's  additional            eligibility  arguments.   Because she  does  not qualify  for            asylum, Salifu also does not meet the more demanding standard            for  withholding of deportation.  Alvarez-Flores, 909 F.2d at                                              ______________            4.                 Affirmed.                 ________                                         -8-                                         -8-
