2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-11-2011

Micheline Lochard v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4642

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4642

___________

MICHELINE NOEL LOCHARD; CARL OLIVER LOCHARD; 

KEVIN ALEX LOCHARD, 

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A097 200 293; A097 200 294; A097 200 295)

Immigration Judge: Honorable Susan G. Roy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 4, 2011

Before: SCIRICA, FISHER and ALDISERT, Circuit Judges

(Opinion Filed February 11, 2011 )

___________

OPINION OF THE COURT

___________

PER CURIAM.

Micheline Noel Lochard, and her minor sons Carl and Kevin, petition for 

review of an order of the Board of Immigration Appeals (ABIA@), which dismissed 

her appeal from an Immigration Judge=s (AIJ@) final removal order. We will deny 

the petition for review.
2

I.

Lochard and her sons are natives and citizens of Haiti. They came to the 

United States in April 2003, and applied for asylum and related relief.1 Lochard 

testified that she had been a member of the National Development Mobilization 

Party, or M.D.N., since January 2000. In January 2003, she received a letter 

from a friend inviting her to attend a Lavalas2 meeting. She was reluctant to 

attend, as the M.D.N. was an anti-Lavalas party, but her friend convinced her, 

saying that the issues to be discussed would be social issues, such as economic 

development and creation of a park, rather than political issues. She attended 

the meeting on January 18, 2003, and the organizers passed out a form to sign 

up for Lavalas membership. She declined to sign it, saying that she needed to 

discuss it with her husband, and also said she was a member of M.D.N. She 

testified that she was then shoved out of the meeting, because they thought she 

was a spy. Around 11 p.m. that night, two men knocked on the door of her home 

and then forced their way in, slapped, kicked, beat and interrogated her for 10 

 

1) 1

The applications for relief are based solely on Micheline=s claim that 

she was and/or will be persecuted because of political opinion. Although her

sons also filed applications, they claimed only that they would be persecuted 

because of their mother=s political involvement. The remainder of this opinion 

will refer only to Micheline=s claims.

2) 2

Fanmi Lavalas was former president Aristide=s political party. See 2004 

Country Reports on Human Rights Practices, Haiti, A.R. 291. 
3

minutes. They said they were leaving but would come back and force her to join 

Lavalas and renounce her M.D.N. membership. She suffered a bad migraine and 

a tooth was loosened (and fell out after 

she came to the United States). She did not report the incident or seek medical 

treatment, but her husband did report it to the police later.

On February 22, 2003, she was not home, but her husband said two men 

came looking for her and asked if she had filled out the membership form; he said 

no, so they said they would return later. Her husband advised her to hide out, 

and she hid at a friend=s house for about one month. Her husband then said she 

could come back because things had calmed down. On March 25, 2003, 

however, seven men came at one a.m. She was able to hide in a pool or basin 

behind the house, but the men came into the house and started breaking things 

and saying they would kill her. They pointed a gun at her husband, and beat him. 

They destroyed everything in the house and then left. She sneaked back into 

the house in about 15 minutes, found her husband lying on the ground, and had 

to revive him by pouring water on him. Her husband made arrangements for her 

to leave the country, and her sons followed soon after. She first testified that her 

husband was in hiding, but then said he was just trying to lie low. She believes 

that even though Aristide is no longer in power, members of the Lavalas party are 

still powerful and interested in her.

The IJ found her not to be credible, based primarily on several 
4

inconsistencies between her initial asylum application and her testimony: (1) the 

application did not mention the January 18, 2003 incident, when she was 

allegedly physically harmed; (2) the application did not state that she told Lavalas 

members at the meeting that she was a member of M.D.N.; (3) the application 

stated that she attended the meeting because she wanted to hear what they had 

to say (rather than because she thought they would not be discussing political 

matters); and (4) the application did not state anything about her husband being 

beaten during the March 25, 2003 incident. Lochard explained these 

discrepancies by stating that a friend filled out the form for her and that Lochard 

did not speak much English when she came to the United States. 

The IJ=s decision also mentioned an additional statement, see A.R. 212, 

Awhich was never submitted to the Court,@ and which addressed some of the 

discrepancies. The IJ considered the statement, but found it did not cure the 

problems with Lochard=s credibility. The statement did say that Lochard told the 

people at the meeting that she would have to notify her party before she signed 

the form. The additional statement mentioned the incident on the evening of 

January 18th, but stated that there were three men that came to her home, rather 

than two. The statement also said she was punched and slapped, but did not 

mention her being kicked, nor did it mention that she had a migraine headache 

and a loosened tooth. The statement also mentioned the March 2003 incident, 

but did not mention that her husband was beaten. The IJ found Lochard 
5

incredible due to the inconsistencies, and also because she failed to provide 

corroborating evidence from her husband and friends. The IJ denied all 

requested relief, except for voluntary departure.

On appeal, the BIA stated that the IJ Aappear[ed] to have made a legal 

error in relying on the lead respondent=s failure to submit certain documents to 

support her adverse credibility ruling,@ but found the IJ=s remaining findings 

regarding Lochard=s omissions and discrepancies Anot clearly erroneous and . . . 

sufficient on their own to support an adverse credibility ruling.@ The BIA found 

that the discrepancies mentioned were central to Lochard=s claim. The BIA also 

agreed that the Asupplemental statement@ did not solve the credibility problems, 

and noted that there was no indication that Lochard had Asubmitted the 

supplemental statement or testified regarding its contents to the asylum officer.@ 

Because of the credibility problems, the BIA upheld the IJ=s denial of asylum and 

withholding of removal. The BIA noted that Arespondents have not appealed from 

the [IJ=s] denial of their applications for withholding of removal under the 

Convention Against Torture [(ACAT@)]@ and thus did not address the IJ=s denial of 

relief under the CAT.3

 

3) 3

Lochard filed a motion to reopen Aseeking administrative closure of 

their case in order to pursue Temporary Protected Status (ATPS@).@ The BIA 

denied the motion on April 7, 2010.

Lochard filed a timely, counseled petition for review. She argues that the 
6

BIA Aabused its discretion@ in denying relief, as petitioners provided Acredible, 

consistent and objective testimony and evidence.@ Petitioner=s Brief at 11. She 

argues that the BIA erred by failing to remand the matter to the IJ because of the 

IJ=s erroneous finding regarding credibility and the need for corroborative 

evidence, and that her due process rights were thereby violated. Id. She further 

argues that the petitioners Asatisfied the statutory criteria for withholding of 

removal and protection@ under the CAT, and that the BIA erred in denying 

petitioners= motion to reopen to remand to the Department of Homeland Security 

for final processing of their applications for TPS. Petitioner=s Brief at 23, 35.
7

II.

We first consider the scope of our review. Because Lochard did not file a 

petition for review of the April 7, 2010 decision, we may review only the BIA=s 

November 17, 2009 decision. See Nocon v. I.N.S., 789 F.2d 1028, 1032-33 (3d 

Cir. 1986) (final deportation orders and orders denying motions to reconsider are 

independently reviewable; a timely petition for review must be filed with respect to 

the specific order sought to be reviewed). Our scope of review is further limited 

by the requirement that an alien Araise and exhaust his or her remedies as to 

each claim or ground for relief if he or she is to preserve the right of judicial 

review of that claim.@ Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 

2003); 8 U.S.C. ' 1252(d)(1). As the BIA noted, Lochard did not raise any issues 

regarding withholding of removal under the CAT in her brief to the BIA. We thus 

lack jurisdiction to consider whether relief under the CAT is warranted. Because 

the BIA issued its own opinion, we review the decision of the BIA, not that of the 

IJ. Huang v. Att=y Gen., 620 F.3d 372, 379 (3d Cir. 2010). 
8

We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 

405 (3d Cir. 2003), and uphold factual determinations, including adverse 

credibility findings, if they are Asupported by reasonable, substantial and probative

evidence on the record considered as a whole.@ Guo v. Ashcroft, 386 F.3d 556, 

561 (3d Cir. 2004). An adverse credibility finding is reviewed under the 

substantial evidence test, and must be upheld unless Aany reasonable adjudicator 

would be compelled to conclude to the contrary.@ Gao v. Ashcroft, 299 F.3d 266, 

272 (3d Cir. 2002) (quoting 8 U.S.C. ' 1252(b)(4)(B)). To reverse an adverse 

credibility finding, the evidence of credibility must be so strong Athat in a civil trial 

[the alien] would be entitled to judgment on the credibility issue as a matter of 

law.@ Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Under the applicable 

law, an adverse credibility finding cannot be supported by speculation, conjecture 

or minor inconsistencies, but must involve discrepancies that go to the Aheart of 

the asylum claim.@ Kaita v. Att=y Gen,, 522 F.3d 288, 296 (3d Cir. 2008).4 

 

4) 4

Because Lochard=s petition was filed before May 11, 2005, the REAL 

ID Act provisions regarding credibility do not apply. Kaita, 522 F.3d at 296. 
9

The BIA here upheld the IJ=s adverse credibility finding because of 

Asignificant omissions and discrepancies between [Lochard=s] testimony and [her] 

written statements.@ A.R. 4-5. The omissions cited by the IJ go to the heart of 

Lochard=s claim. In particular, we find troubling Lochard=s failure to mention her 

beating and her husband=s beating in her initial asylum application. Lin v. Att=y 

Gen., 543 F.3d 114, 127 (3d Cir. 2008) (attempts by applicant to enhance claims 

of persecution go to heart of petitioner=s claim for relief). Considering those 

inconsistencies and the others cited by the IJ, we find that the adverse credibility 

finding is supported by substantial evidence.5 Because Lochard did not meet her 

burden of supporting her asylum claim through credible testimony, the BIA 

properly upheld the denial of her asylum claim. Abdille v. Ashcroft, 242 F.3d 477, 

482 (3d Cir. 2001).6

For the foregoing reasons, we will deny the petition for review. 

 

5) 5

Lochard spends much of her brief arguing that the BIA erred by failing 

to remand to the IJ for new credibility findings, and that this failure violated her 

due process rights. However, Lochard failed to ask the BIA to remand the 

matter, and did not claim that her due process rights had been violated by her 

hearing before the IJ. We thus lack jurisdiction to consider the claim. 8 

U.S.C. ' 1252(d)(1). Lochard also argues that she provided sufficient 

corroborative evidence in support of her asylum claim, but the issue regarding 

corroborative evidence is irrelevant because she failed to provide credible 

testimony in support of her claim.

6) 6

 Lochard was unable to establish refugee status for the purpose of 

asylum; thus, she is necessarily unable to establish the right to withholding of 

removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). As 
10

 

Lochard=s claims have failed, the derivative claims of her sons fail as well.