Casey Voigt v. U.S. E.P.A.

United States Court of Appeals
For the Eighth Circuit
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No. 21-3243
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Nani Tunu Keta,
lllllllllllllllllllllPetitioner,
v.
Merrick B. Garland, Attorney General of the United States,
lllllllllllllllllllllRespondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 13, 2022
Filed: August 10, 2022
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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COLLOTON, Circuit Judge.
Nani Tunu Keta, a citizen and native of Eritrea, petitions for review of an order
of the Board of Immigration Appeals denying relief under the Convention Against
Torture. An immigration judge granted Keta deferral of removal under the
Convention, but the Board reversed that finding on administrative appeal, and Keta
was ordered removed to Eritrea. We deny the petition for review.

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I.
Keta was born in Eritrea and lived there until he relocated to Ethiopia when he
was about forty years old. He came to the United States from Ethiopia as a refugee
in July 2007, and became a lawful permanent resident in March 2009.
In January 2019, Keta was convicted in Iowa of two offenses: domestic abuse
assault with a dangerous weapon and willful injury causing serious injury. See Iowa
Code §§ 708.1(2)(a), 708.2A(2)(c), 708.4(1). As a result, the Department of
Homeland Security charged that Keta was removable from the country. In
immigration proceedings, Keta sought deferral of removal to Eritrea under the
Convention Against Torture.
At a hearing in immigration court, Keta requested the presence of a Kunama
interpreter. Kunama is the language spoken by the Kunama people, an ethnic group
native to Eritrea. Despite diligent effort, the immigration judge (IJ) was unable to
arrange for a Kunama interpreter. The IJ instead accommodated Keta’s second
language by securing a Tigrinya interpreter, and then took steps to ensure that Keta
understood the hearing. Tigrinya is a language commonly spoken in Eritrea.
During the hearing, the IJ permitted Keta, in lieu of direct examination, to
introduce a written statement that he had prepared with Kunama translation assistance
from his son. In his prepared statement, Keta asserted that he escaped from Eritrea
with his family in 2000. He said that before leaving the country, he was incarcerated
for seven years for refusing to perform mandatory military service. Keta said that he
was “beaten badly” and electrocuted while in prison. Keta wrote that he is now
“fearful for [his] life,” because Eritrea has “records that show that [he is] one of the
escapees who have fled the country.”
On cross-examination, the Department introduced Keta’s “Sworn Statement of
Refugee Applying for Admission into the United States” from an interview with an
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asylum officer in April 2007. This refugee statement, completed under oath with a
Kunama interpreter in 2007, said that neither Keta nor his family members was
“harmed or threatened by anyone” while in Eritrea. In that statement, Keta said that
he left Eritrea because the government took his land, and Eritrea was at war with
Ethiopia. Keta said that he was afraid of returning to Eritrea, because the Eritrean
government would consider him an enemy for living in Ethiopia. During the asylum
interview, Keta made no claim that he was imprisoned, beaten, or electrocuted in
Eritrea. When pressed at the hearing about the discrepancy, Keta said that he told the
Kunama interpreter in 2007 about all “the problems [he] faced,” but the interpreter
was “not proficient in the English language,” and did not record everything he said.
He also said that the refugee processor did not ask detailed questions, and that he
provided more detailed information in the immigration court proceeding.
After the hearing, the IJ concluded that Keta’s testimony was not credible, but
that he was nonetheless entitled to deferral of removal under the Convention Against
Torture. The IJ found that even without crediting Keta’s testimony, the record
showed that Keta was more likely than not to be tortured if he were returned to
Eritrea. The IJ relied on evidence of country conditions, and found “extremely
helpful” an article published by the European Asylum Support Office. The article
declares that “the fate of most deported persons upon arrival in Eritrea is unknown,”
and cited only anecdotes from persons “repatriated across the land borders from
Sudan.” According to those accounts, however, the article states that “most returnees
were put in an underground prison near Tesseney,” and “[t]orture is reported from this
prison.” Based on this information, the IJ found that Keta was more likely than not
to be tortured if returned to Eritrea.
The Board sustained the Department’s appeal. The Board upheld the IJ’s
finding that Keta was not credible, but concluded that the IJ’s finding on likelihood
of torture was “speculative” and clearly erroneous. Keta petitions for review, and we
have jurisdiction under 8 U.S.C. § 1252(a)(4).
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II.
Keta first argues that the agency impermissibly concluded that his testimony
was not credible. A credibility determination is a finding of fact, and the Board
reviews the IJ’s finding of fact for clear error. 8 C.F.R. § 1003.1(d)(3). When the
Board sustains an IJ’s factual finding as not clearly erroneous, the IJ’s finding
becomes a final administrative finding of fact. We review the agency’s finding of
fact under the deferential substantial evidence standard. Nasrallah v. Barr, 140 S. Ct.
1683, 1692 (2020). Administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C.
§ 1252(b)(4)(B).
The credibility finding here was supported by substantial evidence. The IJ
found that Keta was not credible because his statement on direct examination
conflicted in material respects with his earlier refugee statement to an asylum officer.
Keta claimed at the hearing that he was imprisoned for seven years and tortured while
in Eritrea, but he told the asylum officer that he had not been “harmed or threatened
by anyone when last in [Eritrea].” He advised the asylum officer that he left Eritrea
because the government had taken his land, and that the “only reason” he did not
want to return was that the Eritrean government is hostile to returnees coming from
Ethiopia. The immigration judge reasonably concluded that Keta’s failure to mention
significant facts about alleged imprisonment and torture to the asylum officer
undermined the credibility of his later claim at the immigration hearing.
Keta also contends that the absence of a Kunama interpreter at the hearing in
immigration court denied him due process. An applicant for relief under the
Convention is entitled to a fair hearing and an opportunity to develop the record. Tun
v. Gonzales, 485 F.3d 1014, 1025 (8th Cir. 2007); see also 8 U.S.C. § 1229a(b)(4)(B);
8 C.F.R. § 1240.10(a)(4). Due process encompasses the right to competent
translation, Tun, 485 F.3d at 1025, but isolated instances of translation errors are
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generally not a basis for relief, as long as the alien is able to convey his story to the
immigration judge. Id. at 1030.
The IJ here took a number of steps to ensure that Keta could participate
adequately in the hearing. After the immigration court was unable to secure an
interpreter in Keta’s preferred language, the court arranged the next best option with
a Tigrinya interpreter. The IJ gave the interpreter and Keta an opportunity to speak
off the record to determine whether they could understand each other. Keta
repeatedly affirmed that he could understand the interpreter. The IJ encouraged Keta
to raise his hand during the hearing if he could not understand something. Keta took
advantage of this opportunity and received several clarifications.
At the end of Keta’s testimony, the IJ asked Keta whether he understood the
interpreter, and Keta replied affirmatively: “Yes, I understand her because she is
speaking very slowly the way I could understand her.” When asked whether he had
a “good chance” to tell his story at the hearing, Keta responded, “Yes . . . . When I’m
not clear we are trying to clarify it. So I would say, yes.” We also observe that the
key factual dispute in the case concerns Keta’s credibility, and Keta enjoyed the
assistance of an interpreter using his preferred language, Kunama, for both the asylum
interview and the conflicting statement presented on direct examination. Under these
circumstances, we are satisfied that the hearing process accorded the petitioner due
process.
Keta further contends that the hearing procedure violated due process because
the Department did not submit his refugee statement as a proposed exhibit before the
immigration court’s deadline for exhibits. A document used for impeachment,
however, need not be made available to the alien before the hearing under the
immigration court’s procedures. U.S. Dep’t of Just., Immigration Court Practice
Manual § 3.1(b)(ii)(A) (2020). Nor does the Due Process Clause require advance
notice that the government will use a particular prior inconsistent statement of the
alien to impeach his testimony. Tamenut v. Ashcroft, 361 F.3d 1060, 1061 (8th Cir.
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2004) (per curiam). The government properly confronted Keta with an inconsistent
statement, and he had an opportunity to respond to the inconsistencies during the
hearing. There was no error in this procedure.
III.
Even accepting the agency’s credibility finding, Keta disputes the Board’s
decision to deny relief under the Convention Against Torture. An alien is entitled to
deferral of removal under the Convention, as implemented, if he proves that it is more
likely than not that he would be tortured if removed to the proposed country of
removal. 8 C.F.R. § 1208.16(c).
The immigration judge made a finding of fact that Keta was likely to suffer
torture if returned to Eritrea. The Board concluded that the IJ’s finding was clearly
erroneous, sustained the Department’s appeal, and denied relief. In that situation, we
review the Board’s legal conclusion to ensure that the Board provided sufficient
justification for its determination. Abdi Omar v. Barr, 962 F.3d 1061, 1064 (8th Cir.
2020). “This means that the Board must adequately explain why it rejected the IJ’s
finding and identify reasons grounded in the record that are sufficient to satisfy a
reasonable mind that there was clear error.” Id.; see Wu Lin v. Lynch, 813 F.3d 122,
129 (2d Cir. 2016); see also Rosales Justo v. Sessions, 895 F.3d 154, 161-62 (1st Cir.
2018).
In finding a likelihood of torture, the immigration judge acknowledged that
“[i]nformation about the treatment of deported persons is scarce” in Eritrea. But the
judge cited the “available accounts” set forth in the report of the European Asylum
Support Office to find that “most returnees were put in an underground prison,” and
that “[t]orture is reported from this prison.” On that basis, the IJ found that Keta was
likely to be tortured if returned.
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The Board concluded that the record was insufficient to support a finding that
Keta would be imprisoned and tortured upon return to Eritrea. The Board explained
that the evidence to support those two inferences is “very limited and ‘anecdotal,’”
and that the IJ’s finding was “based on a fear of what might happen, rather than on
evidence that meets the respondent’s high burden of demonstrating that it is more
likely than not that [Keta] will be tortured.” The Board concluded that the IJ’s
finding was clearly erroneous because it was speculative.
We uphold the Board’s conclusion that the evidence was insufficient as a
matter of law to support the IJ’s finding that Keta likely would be tortured. The
article on which the IJ relied expressly acknowledged that the fate of most returnees
to Eritrea is unknown; only cases of returnees from across the land border with Sudan
were documented. Even if most persons returning from Sudan were imprisoned, that
limited information does not support a reasonable inference that any person returning
from any country is likely to be imprisoned. Beyond that, the inference that any
imprisoned returnee is likely to be tortured is similarly attenuated. The IJ cited
information that torture has been reported from a prison in which some returnees from
Sudan are detained. But a report that torture has occurred in a prison does not mean
that all or most returnees have been tortured. The Board adequately explained that
anecdotal reports of imprisonment of returnees from Sudan, and reports of torture at
the prison, are not sufficient to support a finding that Keta in particular is likely to be
imprisoned and tortured if returned from the United States to Eritrea.
* * *
For these reasons, the petition for review is denied.
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